The Common Law

Family law: power of attorney (Part 2)

Today's column is a follow-up to a previous column that addressed power of attorney. Remember that power of attorney is a legal instrument used to delegate legal authority. The person who signs (or "executes") a power of attorney is called the principal, and the person who receives the legal authority to make decisions is called the agent or attorney-in-fact.

How long does a power of attorney last?

The power of attorney will last as long as the instrument creating the power allows. This is because under Texas law a durable power of attorney will not lapse due to passage of time unless the instrument creating the power of attorney specifically states a time limitation.

What are an agent's obligations to the principal? Can an agent steal a principal's money or property? Who monitors the actions of the agent?

The agent must act in compliance with strict standards of honesty, loyalty, and candor and is obligated to act in the best interests of the principal. Texas law also states that the agent has a duty to inform and to account for actions taken pursuant to the power of attorney. This means that the agent must do things like maintain records of each action taken while using his power of attorney and provide the principal with an accounting when requested.

The agent must also avoid "self-dealing," which happens when the agent acts to further his own selfish interests. A common example of self-dealing happens when a dishonest agent transfers the principal's assets to himself or others. This is why it is important to have a trustworthy agent who will keep accurate records and provide the principal with periodic accountings so all activities related to the power of attorney can be monitored.

Do I need a lawyer to prepare a power of attorney?

No. However, because a power of attorney is an important legal document, a careful consumer should consult a lawyer who can provide legal advice about the powers that are appropriate to be delegated and provide counsel on the choice of an agent. The typical fee for preparing a power of attorney is usually fairly modest.

Please submit column suggestions, questions, and comments to thecommonlaw@austinchronicle.com. Submission of potential topics does not create an attorney-client relationship, and any information submitted is subject to being included in future columns.

Marrs, Ellis & Hodge LLP, www.jmehlaw.com.

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.

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