The durable power of attorney is a crucial legal document in Texas for estate and elder care planning, alongside wills, trusts, and the medical planning documents. It is essential for organizing one’s affairs and ensuring that the person’s wishes are carried out.
A power of attorney (POA) is a legal document that appoints an individual (the “agent”) to make legally binding decisions on behalf of another person (the “principal”). These decisions can include managing financial assets, making medical care choices, and signing contracts or other commitments. The agent can access confidential materials, and their decisions carry the same weight as if the principal had made them.
In some cases, the principal may want the POA to grant broad authority, while in others, they may prefer to limit the agent’s powers by time, scope, or both. However, it is important to note that an agent acting under a statutory durable power of attorney in Texas cannot change a properly executed will. This is beyond the agent’s authority, even if the POA explicitly states otherwise.
A will created by an agent under a power of attorney is considered invalid. Moreover, the agent’s authority typically ends when the principal dies. At this point, the principal’s legal rights transfer to their estate, and the executor of the estate takes over to manage the deceased’s affairs.
Although an agent cannot directly change a will or the estate after the principal’s death, they can still impact the circumstances surrounding the will while the principal is alive. For example, the agent may make significant financial decisions on behalf of the principal, potentially restructuring their personal finances according to their judgment. This could inadvertently invalidate parts of the will if the agent dissolves or alters assets that were assigned to specific heirs. While this may not always involve bad faith or unfair dealings, it is a possibility that should be considered.
To mitigate such risks, it is advisable for the principal to discuss their estate wishes with the agent in advance when including a statutory durable power of attorney in their elder care plan. It is also crucial to remember that laws regarding powers of attorney and estate planning vary from state to state. Therefore, consulting with an experienced estate planning attorney in Texas is essential to ensure that the power of attorney accurately reflects the principal’s intentions and adheres to state-specific requirements.
If you or a loved one needs assistance with elder law, probate or estate planning issues, do not hesitate to BOOK A CALL using our calendar. We are here to help.