Do Elders Need to Create Statutory Durable Powers of Attorney?

 Posted on July 26, 2023 in Elder Law

As people age, it becomes increasingly important to plan for the future and ensure that their affairs are in order. One crucial aspect of this planning involves the creation of a statutory durable power of attorney (SDPOA). This legal document grants authority to another person, known as an agent or attorney-in-fact, to address legal and financial issues and make certain types of decisions on behalf of the elder in the event that they become incapacitated. To ensure that these issues will be addressed correctly, elders and their family members can work with an estate planning lawyer to create powers of attorney.

What Is a Statutory Durable Power of Attorney?

A statutory durable power of attorney allows an individual, known as the principal, to appoint a trusted person to act on their behalf in financial and legal matters. The power of attorney can be effective immediately, or it can become effective only if the principal is incapacitated. The agent appointed in the SDPOA has the authority to manage the principal's finances, pay bills, make investment decisions, and handle other legal matters.

It is important to note that a statutory durable power of attorney is different from a medical power of attorney or a healthcare directive. While a medical power of attorney will give a trusted person the ability to make healthcare decisions, an SDPOA specifically deals with financial and legal matters.

Why Do Elders Need a Statutory Durable Power of Attorney?

Creating a statutory durable power of attorney is crucial for elders for several reasons:

1. Protection in the event of incapacity: As individuals age, the risk of developing conditions such as dementia or Alzheimer's disease increases. In the event that an elder becomes incapacitated, having an SDPOA in place ensures that legal and financial concerns will be taken care of by a trusted individual.

2. Continuity of financial management: By appointing an agent through an SDPOA, elders can ensure that their financial affairs will continue to be managed smoothly even if they are unable to do so themselves. The agent will be able to address issues such as paying bills, managing investments, and making important financial decisions.

3. Avoiding guardianship proceedings: Without a statutory durable power of attorney, it may be necessary for a court to appoint a guardian to manage the affairs of an elder who becomes incapacitated. This can be a time-consuming and costly process. By creating an SDPOA, elders can avoid the need for guardianship proceedings and maintain control over who manages their affairs.

4. Peace of mind: Knowing that their financial and legal matters are in capable hands can provide elders with the assurance that their affairs will be managed according to their wishes and best interests.

How to Create a Statutory Durable Power of Attorney

Creating a statutory durable power of attorney involves several steps:

1. Choose an agent: The first step is to choose a trusted individual to act as the agent or attorney-in-fact. This person should be someone who is responsible, trustworthy, and capable of managing financial and legal matters.

2. Consult an attorney: An experienced elder law attorney can ensure that the SDPOA is properly drafted and complies with the laws of the State of Texas. An attorney can also provide guidance on selecting the appropriate powers to grant to the agent.

3. Draft the SDPOA: The attorney will assist in drafting the statutory durable power of attorney document, which will outline the powers granted to the agent and any limitations or conditions.

4. Execute the document: The principal must sign the SDPOA in the presence of a notary public. 

5. Distribute copies: It is important to make sure all relevant parties will receive copies of the SDPOA. Financial institutions, healthcare providers, and family members may need to be notified of the decisions made and the responsibilities of the agent.

Contact Our San Antonio, TX Elder Law Attorneys for Powers of Attorney

Creating a statutory durable power of attorney is an important step in planning for the future and ensuring that an elder's financial and legal affairs will be properly managed. At The Law Office of Ryan C. Moe, PLLC, our experienced San Antonio estate planning lawyers can provide guidance on how to address these and other elder law concerns, and we can ensure that an SDPOA is properly drafted and executed. Contact our firm at 210-861-6000 to set up a consultation and get the legal help you need with powers of attorney or other related concerns.

Sources:

https://statutes.capitol.texas.gov/Docs/ES/htm/ES.752.htm

https://www.hhs.texas.gov/regulations/forms/advance-directives/statutory-durable-power-attorney-sdpoa

https://texaslawhelp.org/sites/default/files/dba-104-statutory_durable_power_of_attorney.pdf