One of the many charming points about the Texas Durable Power of Attorney (DPOA) statutes is that they give third parties pointed instructions on how to refuse the document. This column will give a bit of insight into the games that banks, title companies, investment companies, and you – yes, you! – can play to avoid accepting DPOAs.
What is a Durable Power of Attorney?
A DPOA is a written document signed by the principal that names an agent to handle the principal’s financial affairs. If it is valid, then a third party is obligated to honor a DPOA unless there exists a statutory excuse.
DPOA Example
Let’s assume that Jane loaned you money, and you have dutifully been paying down the balance. You are now the “third party” in our example. One day a stranger named Brad shows up at your doorstep and hands you a DPOA that names him as Jane’s agent. The document seems a little bit off – the initials don’t match Jane’s signature, it’s clearly a form downloaded from the internet, and you know that Jane suffered a debilitating stroke the week before the document date. Nonetheless, Brad demands that you now send the loan payments to him as Jane’s agent, instead of directly to Jane.
Hmmm.
Brad’s presentation of the document to you starts the clock ticking. The stakes for you are high. If you wrongfully refuse to accept a valid power of attorney, then Brad or Jane can sue you and recover court costs and attorneys’ fees.
The deadlines you need to remember are 10, 7, and 5.
The Games of a Durable Power of Attorney
First Game
You have 10 business days to either agree to accept the power of attorney or – and this is the start of the first game – demand that Brad provide you, under penalty of perjury, his agent’s written certification that certain factual matters are true. The Texas Estates Code contains a helpful certification form in Section 751.203. If Brad provides the certification, then you have 7 business days to accept it. If he does not give you a certification, then you are not required to accept the DPOA.
Second Game
Same time periods but instead of a certification, you request that Brad provide you with an opinion of counsel on a matter of law concerning the DPOA.
Third Game
If the DPOA is not in English, then you have 5 business days to request an English translation. The DPOA is not considered presented for acceptance until you receive the English translation.
Fourth Game
Presenting a statutory ground for refusal. The statutes give you 11 reasons why you do not have to accept a DPOA. You must give the reason to Brad, in writing, within 10 days of the date of his initial presentation to you of the DPOA, or, if you had timely demanded it, within 7 days after Brad provided you with his certification or the attorney’s opinion.
In other words, the demand for the certification, the attorney’s opinion, or the English translation buys you more time to refuse the DPOA.
What Are the 11 Statutory Reasons You Can Refuse To Accept The DPOA?
They are set out, in detail, in Texas Estates Code Section 751.206.
What is Your Max Delay Tactic?
Request the English translation (if appropriate), then upon receipt request a certification or a legal opinion within 10 business days, then upon receipt give, in writing, 1 or more of the 11 statutory reasons why you are refusing it within 7 business days.
Sound harsh? Tell that to the banks, title companies, and investment companies.
Hammerle Finley Law Firm Can Help You Play the DPOA Game
Our experienced attorneys can help you navigate the complicated Durable Power of Attorney process and ensure that you follow the proper protocol. Contact the experts at Hammerle Finley Law Firm today.
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship, and contested litigation. She may be reached at legaltalktexas@hammerle.com. This blog contains general information only and does not constitute legal advice.
