Texas Probate Blog

The Wright Firm, LLP

Statutory Durable Power of Attorney – Myths

Posted on | January 24, 2013 | No Comments

The Texas Statutory Durable Power of Attorney is a very powerful document. However, many myths surround its use. The following provide a few examples.

The most common myth that we encounter is that this document survives death. It does not. The document essentially creates an agency relationship. If you think about it – when the principal dies the relationship dies.

Another common myth is that the document does not survive the incapacity of the principal. In fact, the document can be effective immediately, or upon the principal’s incapacity. Its chief use is during the incapacity of the principal.

Another myth is that if I sign one, a financial institution has to accept it. The truth is that they may not. A great example of why you should not use a document service to prepare one. A Texas probate and estate planning lawyer can be a great asset if a financial institution refuses to accept a statutory durable power of attorney.

Another myth is that I can make gifts under a power of attorney. The truth is that if gifting authority is desired then the statutory durable power of attorney should include specific provisions regarding gifting.

Yet another myth is that once appointed, an agent can act independently. The truth is that an agent has a duty to inform and account to a principal.

A final myth is that you can just use a form. The form that you have may not include elder law planning provisions that deal with medicaid, trust transfers, trust creation, or even agent compensation.

If we can answer any specific questions regarding the creation or use of a Texas Statutory Durable Power of Attorney or Business Power of Attorney, please contact us at (214) 780-9696.

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