Dear Mr. Premack: My husband had a major stroke last month. He is getting better in rehab but may be there for weeks more. We are joint on all our bank accounts and I’m able to pay the bills but other issues are coming up. I don’t think I can bring him home, and want us both to move to assisted living. I want to sell the house, but am being told that I can’t sell without his signature. He is still confused and is unable to sign his name. Can I use the power of attorney for this? — M.E.
Disability can cause serious legal problems when no advance plans are made. In Texas, the signature of both spouses is required for many legal transactions, and some transactions require a specific spouse – like your husband – to sign. If one of you is incapacitated, the other can act as agent under the power of attorney, but you must follow the correct protocols.
When you “sign for him” there is a specific process that any agent should always use. The agent never signs the agent’s own name to a transaction. Rather, the agent must sign the principal’s name. But just signing the principal’s name is not legally adequate. The agent must always indicate that the action is under authority of the power of attorney, and that the action is on behalf of the principal.
Translating that, the agent 1) signs the principal’s name, 2) underneath the signature, the agent prints the statement “by X, agent”. If you are Jane Doe and your husband is Frank Doe, you would sign “Frank Doe, by Jane Doe, Agent.” Instead of “agent” you could also use “attorney in fact.” In any notarization that accompanies a signature, the notary must include a statement similar to “signed by Jane Doe as agent of Frank Doe, on behalf of Frank Doe.”
Failure to indicate that you are acting under authority of the power of attorney very likely invalidates the transaction. Additionally, for any transaction involving real property, the laws of Texas require that the durable power of attorney be recorded in the real property records of the county in which the transaction is taking place. It would be good practice to refer expressly to the power of attorney in each document that you sign, and once it is on record with the county to refer to the volume and page in which it is recorded.
Be cautious about powers of attorney. Under certain powers of attorney, the agent’s powers become void if the principal becomes disabled. You need a DURABLE power of attorney that allows the agent to retain all powers even when the principal becomes disabled. The durable power of attorney should also incorporate the provisions of Chapter XII of the Texas Probate Code, part of which empowers the agent to handle real estate transactions.
If the power of attorney does indeed incorporate the statutory provisions, then you have authority to transfer title to the real estate. If it does not, then older laws require that the power of attorney expressly describe the real estate before you have legal authority over it.
Remember also that a title transfer does not remove ownership of the item’s value from your husband. If you are paid $100,000 for the house, half ($50,000) is still owned by him. In order to actually remove his ownership of that value, the power of attorney must explicitly give you authority to make gifts on his behalf (and the value of the gift must be within any limits he specified in the power of attorney).
Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, December 9, 2012