This column first appeared in the San Antonio Express News on January 25, 2017.
The 85th regular session of the Texas Legislature opened on January 10th and concludes on May 29th. Many bills have been filed, and many more are expected as the next few weeks pass. The legislature addresses a huge variety of issues. Since you have asked about estate planning – which could include Wills, Trusts, Probate, Powers of Attorney, Medical Directive and various taxes – we’ll look at bills or proposals that may affect those areas.
HB 959 proposes to create a new law relating to financial abuse of the elderly. If it passes, it would broadly define certain actions as criminal in nature. For instance, when a person has a “relationship of confidence of trust” with an elderly individual, that person commits a crime by wrongful or negligently taking, retaining or using the elder’s money or property, or negligently or intentionally failing to use the elder’s money to provide the necessities of living.
HB 959 says that caregivers, family members by blood or by marriage, co-owners, agents, and financial planners are in a relationship of confidence or trust. We’ll have to see if this is interpreted to require all family members to intervene in an elder’s life to be certain that they have food, clothing and shelter, because negligent failure to do so would be a crime. If so, the proposed bill may among other objections be far too broad and may discourage people from agreeing to be agent under a Power of Attorney or otherwise getting involved with caring for the elderly.
HB 916 proposes a duty for banks and other financial institutions to report suspected financial abuse of the elderly to Adult Protective Services. This would work hand-in-hand with the criminal provisions of HB 959. Whenever a bank officer has “a good faith belief” that there may be financial abuse of an elder, a report to APS and to the local police would be required. The bank would be immune from any liability for reporting a suspicion, and could be fined for failure to report a suspicion. Again, the question is whether this is too broad a provision which would, among other issues, end up pitting the bank against its own customers.
SB 41 proposes modifications to an existing law which currently requires the Agent in a Power of Attorney to provide an accounting to the Principal upon demand. The bill would expand the law to allow a court appointed Guardian to likewise demand an accounting. Generally, as the law stands today, appointment of a Guardian by the court invalidates an existing Power of Attorney. The Guardian then has access to bank and other records. This would, among other issues, allow the Guardian to sue the ousted Agent for disclosure of details if the Agent is not forthcoming.
Next week I’ll cover some more proposed changes to Texas law.
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.