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Texas Legislature Creates New Statutory Durable Power of Attorney Form

Attorney & Counselor at Law
The new Texas Estates Code (which will be replacing the Texas Probate Code) has changed the statutory durable power of attorney form that has been in existence since 1997. This change will be effective as of January 1, 2014.  Although the existing forms or other powers of attorney will still be valid, a form that looks like the new form is more likely to increase the chances of acceptance by a third party such as a bank.

One of the biggest changes with the new form is that it requires the person signing (the “principal”) the power of attorney to initial the powers he or she wishes to grant to the agent. Presently, the principal simply crosses out the specific powers the principal does not wish to give the agent.  This is likely to create a problem for some since if the principal fails to initial, it will be presumed no authority is given to the agent even though the power of attorney has been signed (unless the principal adds specific authority).

Furthermore, the present statutory form gives a general power for the agent to perform any act that the principal could have performed. The new form does not give this power (so the principal would need to add that).

Elder law attorneys frequently add to the statutory language so that there can be the ability for the principal (through the agent) to plan for public benefits, authority to deal with governmental agencies, create and fund certain trusts, etc. that the statutory language does not cover.

 

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