This column first appeared in the San Antonio Express News on February 23, 2018.
Dear Mr. Premack: I think I have a simple legal question. I heard the law changed regarding recorded Powers of Attorney. I want to revoke my old Power of Attorney, but it was filed at the courthouse years ago. I have someone that lives closer as a reason. Anyway, when I make the replacement Power of Attorney, what happens with the recorded one? Thanks, MG
The legal revisions to the Texas Durable Power of Attorney Act included the following new provision: “a photocopy or electronically transmitted copy of an original durable power of attorney has the same effect as the original instrument…” This is a major change to how Durable POAs will be handled.
Under prior law, it was typical for a bank, broker, title company (or anyone who was asked to accept the Durable POA) to demand to see the original document. They would not accept a copy unless it was a certified copy. The only way to obtain a certified copy was to record the Durable POA with the County Clerk’s office then buy certified copies from the Clerk. For that reason, many people opted to file their Durable POAs at the courthouse so that certified copies could be obtained.
Under the new law, anyone asked to accept the Durable POA should be content with a plain photocopy or even a PDF scan of the original. They are allowed to ask for an Affidavit which confirms the validity of the Durable POA, and are even allowed to ask for a legal opinion from your Attorney attesting to the validity of the Durable POA. But they will no longer need either a certified copy or the original.
You desire to make a new Durable POA that names a new Agent, someone who lives closer to you. When your Attorney writes that new Durable POA, it should include a statement which revokes the prior Durable POA. You could, if you choose, then file the new Durable POA with the county clerk so that the public is informed about the revocation. However, if you do file it and decide in a few years to again change the Durable POA, you’ll again have to file with the County Clerk.
To get out of that cycle, hire your attorney to prepare a proper additional document simply called “Revocation of Durable POA”. In it, recite that the old Durable POA has been revoked and replaced. File the Revocation with the County Clerk to inform the public that the old Durable POA is finished. That will close the books on the old recorded POA.
Do not file the new Durable POA with the Clerk (only file the Revocation document). However, you or your attorney should also contact the prior Agent who you had named in the prior Durable POA to let the prior Agent know that the power has been revoked. Send the prior Agent a copy of the Revocation document so the prior Agent knows there are no longer any responsibilities toward you. At the same time, provide a copy of the new Durable POA to your current Agent so the new Agent becomes aware of the duties and responsibilities being accepted under the new Durable POA.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.