Why YOU need to appoint an attorney-in-fact:
If you should be required to withdraw from managing your own affairs for an extended period (e.g., an accident, a major surgery, stroke, a coma – there’s no end to the potential debilitating possibilities), somebody must be able to attend to the tasks that you previously handled. Your finances – your business – your debts – the needs of people you previously cared for – all those things will require attention. When you cannot attend to such affairs it is prudent for you to have appointed persons to handle the job. There are different kinds of appointments that can be made.
Types and uses:
General powers – A general power of attorney confers authority on your designated attorney-in-fact to attend to every kind of task that can arise. However, under the law, any grant of authority is to be construed as narrowly as possible. Therefore, it is important to make sure to fully express the powers conferred.
Special powers – A special power of attorney confers limited authority. For example, power to sell specific property can be conferred on a person and that will be the full measure of their authority. Such an appointee absolutely cannot attend to any other matters in your place and stead. Should a person appointed to consummate a sale also be given power to negotiate the selling price? To enter a contract to sell property you own? Only powers specifically conferred can be exercised. Should the authority you confer continue in the event you become disabled and can neither modify nor revoke the special power? There are many issues to be considered.
The Texas Statutory Durable Form:
At common law, a power of attorney was terminated upon the disability or incapacity of the person represented (you – the “principal”). That limitation was extremely disabling and as time passed the law changed. Now, powers of attorney can be made to become effective only when it is determined that a person has become incapacitated and to continue through the period the impediment exists. Furthermore, a power can be constructed to become effective immediately upon execution of the document and shall remain effective even if the “principal” should later become incompetent or incapacitated. These devices provide a way to assure that there will always be someone with full legal authority to attend to things when we cannot do the job for ourselves. Texas and other jurisdictions have made laws that eliminate much of the quibbling that existed for centuries about what powers were granted or not granted; the commencement and duration of the authority of the attorney-in-fact; whether the agent had authority to attend to tax matters – and a wide variety of other issues that previously existed.
This link will open the exact Texas statutes that prescribe general important provisions covering the Texas Durable Power of Attorney. The statute that publishes the text of the Texas Durable Power of Attorney is at this link. For some folks, the options that must be selected when executing this form are confusing and more information would be helpful to explore the reasons to select one option over another. It should be noted that the page that opens also contains many other pertinent statutes dealing with the construction and interpretation of the provisions included in the Texas statutory form. There are reasons to NOT use the statutory form unless significant modifications are applied. For example, you should decide whether your designated attorney-in-fact should have power to give away any part of your assets or to establish a trust and transfer your assets to a trustee. There are many issues that must be considered before deciding to use an unmodified form of the statutory durable power of attorney.
Got questions? You can Ask Me.