top of page

How does a power of attorney fare when guardianship is filed?

Dear Mr. Premack: I am currently seeking guardianship of a relative with severe dementia who is currently in a nursing home. Will a guardianship supersede any previous durable power of attorney given by my relative to someone else, which was verbally rescinded (with witnesses) but never actually rescinded in writing? – TTR

Texas law defines two ways that the financial and personal issues for a person (like your relative with dementia) can legally be managed by a second person. The first approach is voluntary: the person, while fully capable, signs power of attorney voluntarily granting authority to an agent. The second approach is involuntary: someone (like you), interested in caring for the person who has now become incapacitated, seeks guardianship in court.

Your relative anticipated that he might need assistance in the future and chose the voluntary route of executing a durable power of attorney. He authorized an agent to provide that assistance. Later, according to you, he changed his mind and desired to revoke the durable power of attorney. He did so only verbally. So question #1 is: can a durable power of attorney be revoked verbally?

The answer is not a simple yes or no. Texas law requires two steps to revoke an agent’s authority. Step one is the principal (the person who created the power of attorney) expressing intent to revoke. The durable power of attorney itself can set out the method by which it must be revoked, and that method must legally be followed. If the power of attorney recites “this may only be revoked in writing” then a verbal revocation is not effective. If the power of attorney is silent about the method, then a verbal statement of revocation could be used as the first step (but should be followed up with a written statement and physical destruction of the original power of attorney).

Step two is communicating the revocation to the agent and other parties. Even if the principal signs a document revoking a power of attorney, if the agent does not have actual knowledge that it was revoked then any action the agent takes is still legally valid. Hence, your friend is required to inform the agent that all powers are removed before they are  in fact removed. Your friend should also tell his bank, broker and anyone else who may have seen the power of attorney.

Question #2 is about the relation of a guardian to an agent. Can your relative’s durable power of attorney survive even after you file to become Guardian? The answer here, under Texas law, is also in two parts. First, if you apply to the court for a temporary guardianship, you must inform the court of any power of attorney of which you are aware. The court can then decide whether to leave the agent in charge during the temporary guardianship, or whether to void it and give that authority to the guardian. It is up to the Judge on a case by case basis.

Second, if you apply to the court for a permanent guardianship, you must inform the court of any power of attorney of which you are aware. The agent’s authority continues until the date the court appoints a permanent guardian, and then the power of attorney is legally void. The agent is legally required to give to the guardian all of the assets and records of the ward, along with an accounting for activities performed while acting as agent.

You should also find out whether your relative ever signed a “declaration of guardian”. This is a legal document in which your relative would have anticipated that, although a power of attorney exists, someone else (like you) might try to void it by filing for guardianship. Your relative may have specified his own choice for guardian. If you are not on the top of his list, or if your relative disqualified you from becoming guardian, then your attempt to become guardian should be denied by the court in favor of the person designated by your relative.

Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, November 18, 2011


bottom of page