Why You Should Have A Statutory Durable Power Of Attorney

Posted by: Adair M. Buckner

An important component of an estate plan is a statutory durable power of attorney, often called a general power of attorney. This power of attorney allows you to name an agent or agents to carry on business-type activities on your behalf if, for any reason, you are not able to do so yourself.

If you become incapacitated or incompetent to the extent you cannot take care of your own affairs, it is extremely important that you have designated a person, who is called your agent, to take care of things such as your banking, real estate, personal property, and like matters. A medical power of attorney is a separate document that allows an agent to make medical decisions on your behalf if you are not able to do so yourself, as discussed in this blog.

The Consequences Of Not Having A Power Of Attorney

People don't like to think about the possibility of becoming incompetent or otherwise unable to handle their own affairs. Or, they may have trouble deciding who they would want to serve as their agent if they do lose competency. So, they procrastinate until it's too late. Having a durable power of attorney drawn up sooner rather than later can be critical.

We all have numerous family members or friends who have developed dementia, a debilitating disease, or the simple inability to deal with more complex business issues. They can no longer carry on their own affairs. So, this is a very real issue for a large part of our population.

The most important reason to have this power of attorney drawn up is that, if you become incompetent or incapacitated, and you have no spouse, or the third party you're dealing with will not allow your spouse to act on your behalf, the only option available at that point to have someone conduct your affairs for you is to have a guardianship established.

The Downsides Of Guardianship

Guardianships are extremely expensive, complicated, and time-consuming. In addition to the court filing fees, service fees, and attorneys fees, the applicant for the guardianship must have an attorney ad litem appointed to represent the interest of the incapacitated person, who is called the ward. 

The guardianship application process, even if uncontested, will likely cost at least $5,000. If it is contested, meaning that more than one person seeks to be appointed or another interested person disputes that a guardian is needed, the costs can easily go to $10,000 or more. The attorney ad litem fee may be several hundred to a thousand or more in additional fees.

One other drawback of failing to draw up a general power of attorney is that you may have no choice about who is appointed your guardian. The court will follow a statutory order of persons who have precedence to be appointed. You may love these people dearly but have no confidence in their ability to manage your financial matters. In a general power of attorney, you retain the ability to say who you want to act as your agent.

The Importance Of Drawing Up A Power Of Attorney Now

For the reasons outlined above, a guardianship for an incapacitated or incompetent person should be avoided if possible. The simple way to do this is to have the statutory durable power of attorney drawn up before there is any question about your competency. Once competency is lost, you cannot draw up your own power of attorney. The cost for preparation of this document will likely be in the range of $350-$500. Obviously, this is substantially less than the cost of a guardianship proceeding.

What are you waiting for? Do not procrastinate. Clients with loved ones who have become incompetent frequently tell me there were plans to have a power of attorney drawn up before competency was fully lost. Waiting too long can be disastrous.

If you would like to talk about drawing up a statutory durable power of attorney in the state of Texas, please call Adair M. Buckner for a free initial consultation.*

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*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)

** 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.


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