The Texas Estates Code provides templates for the language for a statutory durable power of attorney (financial) or a medical power of attorney. Therefore, these templates have been made into forms that are easily replicable. So, you don’ t need an attorney, right?
There are two critical disadvantages to attempting to draft your own power of attorney. First, not all forms found on the internet comply with Texas statute. Yes, there are forms that are available that are correct, but do you know the difference? If you come to Pyke & Associates, there’s no doubt you are getting the appropriate document.
More critically, the point of having a power of attorney is to make it enforceable. Financial institutions can be very wary of accepting powers of attorney for very solid reasons. How do they know the power of attorney wasn’t revoked? How do they know the power of attorney was actually signed by the principal? How do they know that the principal is really incapacitated and can’t act for themselves? Accordingly, the Texas Estates Code allows these financial firms to reject what appears to be facially-valid durable powers of attorney. Thankfully, the Texas Estates Code now provides a fantastic tool to enforce those powers of attorney – a legal opinion from an attorney that the power of attorney is valid. Tex. Estates Code § § 751.204(a).
For powers of attorney that are executed in our office, in most circumstances, we can provide this legal opinion and make the power of attorney enforceable for your agent and thus achieve the purpose of the power of attorney. We can do that because we know the document was properly drafted, using the right language, and properly executed before a notary by the principal when the principal was competent. Do we know these things, and can we provide a legal opinion, when we did not supervise the execution of the power of attorney? In most circumstances, the answer would be no. And that would be true for every other attorney. On what basis can an attorney opine that the power of attorney was executed properly by the principal at a time the principal was competent, unless the attorney supervised that execution?
Powers of attorney are simple documents to prepare, essential in almost every estate plan, and not expensive. Yes, you can save a few bucks by doing it yourself, but you may leave yourself with a worthless document.
This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, specific tax, legal or accounting advice. We can only give specific advice upon consulting directly with you and reviewing your exact situation.
