Statutory Durable Power of Attorney

PUT YEARS OF EXPERIENCE IN YOUR CORNER

Most people are aware they should have a will to designate the beneficiaries of their assets and property after their death, but there are other important documents useful for arranging your affairs as part of your estate plan in the event of incapacitation. 

It is a best practice to establish a Statutory Durable Power of Attorney in the event you are physically or mentally no longer able to make financial decisions for yourself. 

In the event of a serious medical illness or injury, loved ones will likely be in a highly emotional state struggling to manage your financial affairs and the management of any of your property. A Statutory Durable Power of Attorney allows an individual to step into your shoes to make financial decisions when you cannot. Your agent may also be apply to apply for public benefits on your behalf like Medicaid, Supplemental Security Income (SSI), or other government assistance programs. If you are a veteran, your agent may also be able to assist you with your Veteran’s Affairs benefits. 

Note that a Medical Power of Attorney is a separate matter from a Statutory Durable Power of Attorney. While a Medical Power of Attorney names a “healthcare proxy” to make important medical care decisions, a Durable Power of Attorney facilitates a proxy making your financial decisions.

Our attorneys are familiar with the estates code and can help you and your family prepare these important documents. By discussing these issues with your family well in advance, you can ease the burden loved ones would otherwise face. We will ensure your Statutory Durable Power of Attorney has specific, effective language to convey your wishes and specific needs

At Hunt Law Firm, we can help you establish a durable power of attorney. Contact us today for a consultation with our legal team by calling (832) 781-0320.

CONTACT OUR EXPERIENCED LAWYERS TO ESTABLISH A DURABLE POWER OF ATTORNEY IN KATY

WHEN WOULD I NEED A STATUTORY DURABLE POWER OF ATTORNEY? 

There could be many instances where a Statutory Durable Power of Attorney is a practical estate planning tool. 

1. Incapacity or Illness – Sometimes individuals become incapacitated or ill – stroke, dementia, accident, coma or surgery recovery. An agent can step into to help when a sudden life-changing event occurs. It will be too late to plan if you suffer a substantial health event and are incapacitated as your family may have to pursue guardianship. 
2. Convenience – There are many individuals who frequently travel, are busy professionals, living abroad or are deployed with the military. An agent can keep financial matters running smoothly. 
3. Planning for Aging - Some elderly individuals may want their children to assist with their finances, so they don’t have to. The allows for someone to come alongside and help. 

Per the Estates Code, a Statutory Durable Power of Attorney must:

• Designate another person as the agent who has authority to act in your place
• Mirror the wording of Estates Code Section 752.051 which is the form for a statutory durable power of attorney 
• Contain the words “this power of attorney is not affected by subsequent disability of the principal” or something similar to this phrase, to clearly indicate the principal intends to confer authority to his or her agent
• Be signed by the principal in front of a notary, and the principal must be of sound mind and know what they are doing by signing the documents
• Be filed with the county clerk of each county where you own property, if you are entrusting your agent to conduct real estate transactions for you

WHEN DOES A STATUTORY DURABLE POWER OF ATTORNEY BECOME EFFECTIVE? 

There are two ways a Statutory Durable Power of Attorney becomes effective: 

1. Upon Disability or Incapacitation
2. Immediately 

1. Upon Disability or Incapacitation

A Statutory Durable Power of Attorney can become effective after a specific event occurs, like incapacitation. This type of Power of Attorney only takes effect on the occurrence of a prescribed event or circumstance. 

Pros: 

• More Control - Agent has no authority until incapacitation 
• Risk Reduction - Reduces risk of misuse 
• Client Comfort - Allows some clients to feel more comfortable knowing the power is not in place 

Cons 

• Delay - Delays when action is needed  
• Proof Requirements - Difficult to use in emergencies as physician letters are needed to prove the principal’s incapacitation 
• Denial - Possible denial from financial institutions 

2. Immediately  

A Statutory Durable Power of Attorney can also take effect immediately, shifting the power to the agent now. This gives an agent the powers conferred to them the moment it is signed.  

Pros: 

• Easy to Use – Financial institutions prefer when it’s effective immediately 
• No Delay – There is no delay for your agent allowing them to jump into action  
• Avoids Proof Requirements – Since it’s already effective, there is no requirement to prove a principal is incapacitated  

Cons 

• Confers Authority – An agent is given authority immediately which can worry some clients 
• Risk of Overreach – Agents immediate power can worry clients if they are concerned about financial abuse 
• Loss of Privacy – Allows for financial visibility as agents can access financial balances while a principal is still handling their own affairs 

At Hunt Law Firm, our knowledgeable estate planning attorneys will discuss which option is right for you based on our current circumstances, family dynamic and financial situation. Our team takes the time to meet your needs and guide to towards the approach that provides the right balance of protection and flexibility.

AGENT DUTIES 

An agent is the named individual appointed to act on your behalf. They are trusted to make all financial decisions for you conferred under the Statutory Durable Power of Attorney. 

When an agent accepts the powers, they establish as “fiduciary” relationship with the principal (the person who executed the Statutory Durable Power of Attorney). A fiduciary relationship is a legal relationship with significant duties and responsibilities that continue until the Statutory Durable Power of Attorney ends – whether by resignation, revocation, suspension, or operation of law. 

As an agent, you have the duty to: 

1. Act in good faith;
2. Do nothing beyond the authority granted in the power of attorney;
3. Act loyally for the principal's benefit;
4. Avoid conflicts that would impair your ability to act in the principal's best interest; and
5. Disclose your identity as an agent when you act for the principal. 

An agent must also: 

1. Maintain records of each action taken or decision made on behalf of the principal;
2. Maintain all records until delivered to the principal, released by the principal, or discharged by a court; and
3. If requested by the principal, provide an accounting to the principal 

Call (832) 781-0320 to contact us today to schedule your consultation and discuss our flat-fee simple estate planning services.