Dear Mr. Premack: A few years ago while I was in the hospital, my only daughter got me to sign a power of attorney giving her the ability to manage my money. I was so sick then that I almost don’t remember signing it. I got better and went home, and there weren’t any troubles until last month when some money was missing from my bank account. The bank told me my daughter had withdrawn it with the power of attorney. I asked her, and she said she was in a bind and took the money, but would pay me back. I don’t want her to get in trouble, but I don’t want her to have power of attorney anymore either. How do I get rid of this power of attorney? – B.V.
Under Texas law, a durable power of attorney can be revoked by the principal (you, the person who granted the authority) at any time and for any reason. Sometimes, revoking a durable power of attorney is as simple as creating a new, replacement power of attorney. The replacement does three things: 1) it appoints a different agent and alternate agents, 2) it defines exactly what powers are being granted to the new agent, and 3) it revokes the prior power of attorney.
However, signing the replacement power of attorney is only the first step. You must inform the prior agent (in your case, your daughter) that her agency has been revoked. You should do so in a letter, sent to her by certified mail, return receipt requested so you have a written record that she has been informed. You should also speak with her directly so she understands that her powers have been revoked.
At times, the relationship between you and the agent you are firing may be very strained. You may not want the fired agent to know what your new plans entail or who you have chosen as the replacement agent. If so, you can sign another document which contains only a revocation of the old power of attorney. It tells the old agent that she is fired and has no further authority, but does not tell her about your new plans. The revocation document would also be sent by certified mail (instead of sending a copy of the replacement power of attorney).
Additionally, there are situations in which the fired agent will continue to fight you for control. What if your daughter had not taken any money, rather she had done something completely honest but objectionable to you. For instance, what if she had moved some of your money from a CD into the stock market? You still own the new investment, but did not want it and consequently you decide you do not trust her judgment. You revoke the old power of attorney and she feels that you are doing the wrong thing, and that you have lost your better judgment. She consults an attorney, tells him you have lost your marbles, and that she wants to initiate a guardianship over you in court to regain her authority.
If you fear that the fired agent may try such a ploy, then in addition to revoking the old power of attorney and creating a replacement power of attorney appointing a new agent, you should also sign a “Declaration of Guardian”. In the Declaration, you would instruct the court that your new selection for agent is nominated as your guardian (if the court finds that a guardian is necessary). Further, you would instruct the court that your fired agent (your daughter) is legally disqualified from ever serving as your guardian.
Should anyone ever initiate a guardianship by claiming you are incapacitated, then you (or your nominated guardian) will file the Declaration with the court to instruct the judge exactly who can and cannot be appointed guardian. That way you can keep someone who you feel has acted against your best interest from regaining control over you.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2012) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, August 6, 2012