This column first appeared in the San Antonio Express News and other Hearst Newspapers on October 1, 2018.
Dear Mr. Premack: Can a Durable Power of Attorney and a Medical Power of Attorney be amended to change the alternate agent without a new document being issued? – RLD
A Durable Power of Attorney is legally intended to delegate to an Agent authority to assist with the Principal’s financial and business matters. A Medical Power of Attorney, likewise, delegates to an Agent authority to make medical decisions for an incapacitated Principal.
If your attorney has written and you have signed these documents, but now desire to change the identity of the Agent or an alternate Agent, what steps do you take?
First, for a Medical Power of Attorney, Texas law specifically forbids changing the Agent or alternate Agent except by signing a brand new Medical Power of Attorney. You cannot amend your Medical Power of Attorney; you must replace it to change it.
Second, for a Durable Power of Attorney, Texas law has no specific instructions. The statute neither allows nor forbids you to amend a Durable Power of Attorney. May you, then, amend your Durable Power of Attorney to change the identity of an Agent or alternate Agent? To provide an answer, look at this from the perspective of a third party being asked to accept that amended Durable Power of Attorney.
Third parties are quite cautious about protecting themselves and protecting the Principal who signed a Durable Power of Attorney. Perhaps it is your bank, and the Agent is attempting to access your money. The bank does not want to make a mistake that may create a liability. Consequently, I have never 1) myself amended a Durable Power of Attorney for a client, 2) seen any other attorney do so, or 3) seen any bank accept and act under an amended Durable Power of Attorney.
Your safest route is to have your lawyer re-write a new Durable Power of Attorney which revokes and replaces the prior one. If the new Durable Power of Attorney removes an Agent or an alternate Agent, that removed individual should be informed of the change in their authority. Any institution or individual who had a copy of the prior Durable Power of Attorney should be informed that it has been revoked, so that they will not continue to rely on what you previously told them.
Powers of Attorney, both financial and medical, are important and complex legal documents. They typically grant broad authority to someone you have selected. If you change your mind, you need to protect yourself and your assets by having your lawyer write a replacement legal document. Do not try to amend your Power of Attorney.
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.