San Antonio Express-News
July 22, 2003

What is Validity of Very Old Will and Power of Attorney?

copyright 2003, Paul Premack

Since you have written me, I know that your common sense has already answered the questions you pose. When some documents get as old as these, there are bound to be some difficulties with them.

Wills are quite different than powers of attorney in that Wills do not become outdated, at least in the broadest sense. The law behind Wills is very consistent, and if a Will was legally valid under Texas law in 1955 then it is still legally valid under Texas law in 2003. The problem is that "legally valid" is the lowest standard to apply. We want the Will to be more than valid; we want it to be efficient and to express the current wishes of its maker.

If you had young children by the end of the 1950’s then you may have grandchildren by now. The 1955 Wills should be abandoned in favor of Wills that consider the full extent of your current family and your current financial resources.

It was fairly common decades ago, but is rare today, to use a joint Will for both spouses. Your letter refers to "the Will," so I infer that you may have a joint Will. It is much better for each of you to have your own Will, expressing your own desires and disposing of your own assets. Clearly your husband and you should update your Wills.

Powers of attorney do not last as long as Wills. They become outdated both legally and practically. From the legal perspective, the statutes behind powers of attorney have evolved tremendously since 1955. The very idea of a "durable" power of attorney did not exist then. The concept of standard powers delegated to the agent did not exist. The distinction between financial powers and medical powers did not exist.

From the practical perspective, the older a power of attorney grows the less likely it is to be useable. If your husband were to take ill, and you needed to make a change to his retirement account or sell some stock in his name, the broker will inspect the power of attorney closely. In my experience, if the power of attorney is more than ten years old, the likelihood that it will be refused increases greatly.

Since the purpose of signing the power of attorney back in 1955 was to give you authority to handle his affairs if he could not do so (and vice-versa) and since that power of attorney is very unlikely to achieve that purpose 48 years later, he should definitely create a new power of attorney. Actually, he should do two: one for financial affairs and a separate one for medical decision-making. You should do the same. Are you listening, husband? Visit your attorney, make things right, and your wife will have one less thing to nag you about. You win all the way around.