STATUTORY DURABLE POWER OF ATTORNEY
In the event of your disability or incompetence due to accident or illness, who will attend to your affairs? If you have not made provisions for this possibility, your loved ones may have to go through a costly and time-consuming guardianship proceeding in court in order to handle your affairs. To insure that your loved ones are not burdened with this unnecessary added stress in their time of need, you should execute a statutory durable power of attorney.
- A power of attorney is a document in which one person gives authority to another to act on his or her behalf. The scope of the power can be limited (such as the authority to sell a house) or general. A power of attorney to may be used to facilitate business or financial transactions and to enable action on behalf of a person who is incapable of making his or her own decisions.
- A conventional power of attorney becomes void if the person granting the power is suddenly incapacitated. By designating a durable power of attorney, however, you can provide for the management of financial affairs and other matters in the event that you are rendered unable to act personally.
- Use of the durable power of attorney allows the principal (you) to choose an agent (your spouse or other loved one or trusted person) rather than having the court select a guardian. The attorney-in-fact is able to make property transactions without prior court approval.
- A "springing" power of attorney becomes effective only when the principal becomes incapacitated or upon some other specified occurrence. The springing power of attorney is used if a person wishes to delegate power when incapacitated, but wishes to retain it while still mentally competent.
- A springing power of attorney requires a formal determination of disability. This can involve a short delay and extra expense. If there is uncertainty or disagreement over the degree of the principals disability, the case can end up in court.
- The Texas Legislature has promulgated a standard form to be used by persons wishing to execute a durable power of attorney. This form may be modified, but the standard form enjoys a presumption of validity in the event of a challenge.
- The Statutory Power of Attorney allow the principal to limit the gift giving powers of the appointed agent.
- The Durable Power of Attorney can be revoked by filing a revocation on the county clerk's office where your property is located. Additionally, your power of attorney is automatically revoked in the event of your death or if the court appoints a guardian for you.
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