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Power of attorney form change cannot alter document's importance

A column in the Houston Chronicle reminded us that a new Statutory Power of Attorney form went into effect in Texas at the beginning of 2014. There are a few key differences from the old form, but some things have not changed.

What has not changed: The person signing any kind of power of attorney is still called the principal, and the person who is given the power of attorney is the agent. The powers granted under a power of attorney can cover almost any part of the principal's life. For the most part, powers of attorney grant authority over managing daily finances, investments, or health care decisions.

There is a difference between a power of attorney and a durable power of attorney. A power of attorney can be of any duration. A parent going out of the country may give an adult child power of attorney so that bills will get paid while she is away. The power of attorney will expire on the date she returns. 

A durable power of attorney is one that goes into effect or stays in effect if the principal becomes incapacitated. It is a very important difference, so a durable power of attorney document must include the word "durable."

What has changed: The new form asks that principals initial each power granted under the power of attorney. In the past, principals were asked to cross out the powers that they did not want to convey. The new form is an affirmative form instead of an opt-out form.

The new form also includes new language addressed to the principal and the agent. At the top of the form is a special notice to the principal offering some common-sense advice: The notice urges the principal to choose an agent carefully, to choose someone who is trustworthy.

It also reminds the principal that this durable power of attorney expires at the principal's death if the principal does not revoke it, if the agent does not resign or if a guardian is appointed for the principal.

The notice at the bottom is directed at the agent, reminding him of his fiduciary responsibilities under the durable power of attorney. The fiduciary relationship not only entails the solemn trust of the principal, but it confers personal responsibility and liability on the agent.

What will never change: The key word in any power of attorney document is "power." Granting an agent control over any portion of your life gives that person immense power, just as accepting the responsibility for even just a portion of someone else's life means having immense power. The form is written in statute as a guide for citizens, but it may be wise to work with an experienced attorney on such weighty matters.

Source: Houston Chronicle, "Elder Law: Texas has a new Statutory Durable Power of Attorney," Wesley E. Wright and Molly Dear Abshire, Jan. 13, 2014

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