Elder Law Caveats for durable power of attorney

Most people these days are living longer and prosperous lives. Advances in health and technology provide more information designed to keep us healthy. Regardless, after we reach a certain age, we need to consider what will happen to our assets after we pass on.

One case involved an older gentleman who had followed all the necessary steps to probate his wife’s will upon her death. The question arose about where to keep this valuable document for safekeeping. When the man designated his son as the executor of his will, he was advised to assign his son durable power of attorney. Legal documents vary and require different processes.

Most financial institutions will ask for an original durable power of attorney when the designee seeks to carry out a task. It is critical that the institution see the original, or the act will be rejected. A photocopy is not acceptable, and the final wishes of the deceased cannot be carried out.

For a while, this was not the case in Texas. From 1989 to 1992, durable power of attorney had to be filed with the county clerk. This was later changed for real estate transactions and to coincide for increased lifespans. Upon filing, the maker needs to be proactive in keeping track of his documents, also informing his agent as to their whereabouts and status. Of equal importance is the protection of the last will and testament. The original needs to be kept under lock and key for safekeeping in case it needs to be present in court. A will should not be filed with the county clerk, as it lends itself to an invasion of privacy. Experts also recommend an individual assign a medical power of attorney and directive to physicians. Photocopies are acceptable for this, but originals should be kept in a safe place.

If you have an elderly member of your family who is considering how to carry out his or her final wishes, it is advisable to investigate how the state of Texas views probate, last wills, and durable power of attorney. If your loved one becomes too ill or disabled to care for him or herself, his final wishes may never be carried out. Duties of ownership and assets should be reviewed by a trusted person who can help your loved one be laid to rest in peace, providing for heirs and beneficiaries as desired.

Source: Source: “File your Durable Power of Attorney with the County Clerk,” Paul Premack, July 7, 2014