While single purpose Powers of Attorney have been used to transfer distant real estate for over 200 years, multipurpose Durable Powers of Attorney only date from the 1960s. They are still a work in progress. Because of this, banks, brokerage houses, title companies and others sometimes hesitate to accept them.
For a Durable Power of Attorney to be valid with regard to real estate it must be recorded with the county clerk of the county where the property is located.
In Texas, for it to be valid with regard to a home equity loan or similar borrowing, it must have been signed in the office of a lawyer, a bank or a title insurance company.
Financial institutions are naturally concerned about the possibility that they will mistakenly accept a bogus or revoked Durable Power of Attorney or one presented by an untrustworthy agent. People usually name their child as their agent. But an estimated 60-70% of elder fraud is committed by family members, often using a Durable Power of Attorney.
While you are still competent, get your bank officer and broker to review your Durable Power of Attorney and get a written acceptance. Like Social Security and the IRS, your bank or brokerage house may have its own form, whatever Texas law says.
Be aware that the 2017 Texas legislature amended the Durable Power of Attorney law, allowing financial institutions to refuse to accept Durable Powers of Attorney for certain reasons which cannot be contested in court (Texas Estates Code 751.206-7). Some of these could protect you. A financial institution can refuse to accept a Durable Power of Attorney based on a good faith belief that your agent has a history of financial crimes or that your agent has mismanaged funds. It can refuse to accept a Durable Power of Attorney if it has previously sued or been sued by your agent. It can also refuse to accept a Durable Power of Attorney if law enforcement requests this, if acceptance would be inconsistent with law or counter to an internal policy necessary to follow the law.
If a financial institution refuses to accept a Durable Power of Attorney for another reason, that refusal can be challenged in court (Texas Estates Code 751.212). This is some comfort, but not if your agent needs the money to pay for your care today and not if you cannot afford a lawyer or find one who will work for free.
Someone else who holds your property, such as a storage facility, is required to accept your Durable Power of Attorney.
Your Durable Power of Attorney should be carefully drafted, not just downloaded off the internet. This protects you and lets you give your agent needed powers not provided by the Texas Statutory Durable Power of Attorney.
Your agent and successor agents should be carefully chosen and required to report to others. That keeps them on their toes and prevents unnecessary suspicions and family disputes from arising.
Estate Planning attorney, Terry Garrett, is a member of the National Academy of Elder Law Attorneys and is active in the Texas and Austin Bar Associations. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.
She assists families of people with special needs, people planning for the retirement years and people administering estates.