Can I change my old durable power of attorney?

Dear Mr. Premack: I had my durable power of attorney done by an attorney in 1993. I listed my father as Agent with my mother as first backup Agent. Recently, my father died. The last item in the POA says that it will be in effect unless revoked by written instrument recorded in the court house (the original was recorded). All I need to do is remove my dad and appoint a new alternate. Is there any easy way to accomplish this? HWA

Yes, there is an easy way: go back to your lawyer and get a new durable power of attorney that names a new alternate. Or maybe you meant: is there a way I can alter the 1993 POA to do what I want? Texas law says you cannot. The law requires you to sign a new durable power of attorney revoking the 1993 document and appointing new agents.

The law itself has changed in many ways since 1993. A new durable power of attorney should address various legal issues that did not exist back then. For instance: you authorize your Agent to pay your bills for you if you become ill. A bill comes in the mail from some doctor’s office, and the Agent wants to know what it is before spending your money. In 2004, the federal HIPAA law forbid the doctor’s office to disclose that information without your prior consent. Thus, a new durable power of attorney should include provisions dealing with HIPAA. There are other examples, but the point is that it would be time to legally update your power of attorney even if your father had not recently passed on.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, November 19, 2010


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Paul Premack has been a Board Member and has served as President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) and is a Member of the Washington Chapter of NAELA. He is *Certified as an Elder Law Attorney (CELA) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in the States of Texas and Washington and handles Estate Planning and Probate in Texas and Washington, including and Bexar County and King County Probate, Wills, Living Trusts, Durable and Medical Powers of Attorney, and Elder Law. Premack writes the legal column for the San Antonio Express News which is syndicated in other Hearst Newspapers around the USA.

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