A Durable Power of Attorney can save time and money and can reduce confusion if you become unable to handle your own finances. You need not be wealthy to find uses for a Durable Power of Attorney.
By signing a Durable Power of Attorney, you give someone of your choice (an Agent) power to act in your place. There are two basic types of power of attorney: Durable and Regular. To be Durable, your power of attorney must say something like “This power of attorney will not terminate on the disability of the principal”.
A Regular Power of Attorney becomes invalid if you become disabled in any way. A Durable Power of Attorney, however, stays in force even if you are unconscious. Durable powers of attorney continue to work until the moment of your death.
You can grant unlimited powers to your agent, or you can grant very narrow powers. You can be as specific as you want. For estate planning, the powers granted are usually extensive to allow your agent flexibility.
Caution must be used when appointing an agent. If the powers are broad, your agent might dishonestly use your assets for your agent’s gain. You must always select an agent who is trustworthy. You must also be aware that the agent is only your assistant… you still have power to act for yourself without the agent’s involvement.
If you are nervous about the lack of supervision inherent in a power of attorney, you might consider a living trust. More complex and expensive, living trusts are also private, and can help you avoid probate. They allow a trustee, who you choose, to manage your finances when you are unable. A trustee has well defined responsibilities and limitations.
Texas requires that a Durable Power of Attorney be made in writing, be signed by you, be witnessed by two adults, and be filed with your county clerk. Our law office can help prepared them for you. [Update: changes to the law no longer require filing and witnesses, just a notary.]
Your Agent’s powers exist until they expire (if the document gives a termination date) or until they are revoked by you. Revocation must also be in writing, signed, and must be filed with the county clerk.
Although you must be cautious in choosing your agent and must follow state mandated procedures, a Durable Power of Attorney streamlines legal procedures and cuts costs, keeps your private business private, and helps avoid guardianship.
Original Publication, Paul Premack: San Antonio Express News, November 10, 1989