Dear Mr. Premack: My mother has listed my father as her agent in her for durable power of attorney and in her medical power of attorney. They asked their lawyer to list me as alternate agent if my father "becomes legally disabled, resigns, or refuses to act". My father is quite ill, and wants to resign as agent. How does he go about stepping aside? MV

You did not mention your mother’s health. If she is well and capable, she can bypass the whole resignation/disability issue by signing new powers of attorney that list you as her primary agent.

By state law, under her medical power of attorney authority to make medical decisions passes to the alternate agent if the primary is "unable or unwilling to serve". That is an easy standard to meet, and if your mother’s physician cannot get an answer from your father then the doctor will turn to you without complex paperwork.

The financial durable power of attorney is more complicated. Its wording (as you quoted in your letter) gives your father several opportunities to legally step aside. He should sign a document which says he resigns and refuses to act as your mother’s agent. It should be notarized to bolster its authenticity.

Ideally, he should ask his attorney to write the resignation document. You don’t want anything too vague that would cause others to question whether your power as alternate agent has been invoked.

If he became ill to the point that he could not sign a resignation document, then you would need to use the "legally disabled" category to remove him as agent. A person is considered legally disabled only when a judge with proper jurisdiction rules the person has become incapacitated.

That type of legal proceeding is complex and expensive, which is why I never use the "legally disabled" standard when I draft durable powers of attorneys for my clients. Instead, the document should allow a physician to deem the agent disabled. By setting this standard, you still utilize an objective outsider to say whether disability exists but do not have to go to court. You can read more about agent resignation in the Virtual Law Office on my website at www.Premack.com.

Dear Mr. Premack: Is an agreement to deprive me of my rights in community property valid if signed under false pretenses? I was told I was signing bank documents for a piece of property but it turns out that was not the case. My husband will not discuss it with me, and will not let me see the documents. I'm thinking he slipped an agreement in with other papers I signed. SW

Usually, claiming "I didn’t read it" is not enough to get out of a contract, but in this case a statute gives you the opportunity to retain your property rights. The Texas Family Code enunciates the legal standards which must be met for a valid pre- or post-nuptial agreement.

These agreements cannot be enforced if you can prove that 1) you did not sign the agreement voluntarily, or 2) the terms of the agreement are unconscionable and that before you signed it you did not have full knowledge of the extent of his property and of your spouse’s financial obligations.

If the agreement involved real property, it is likely filed with the county clerk’s office. You could go to the courthouse and ask the clerk for help to locate the recorded copy of the document.