Changes to Statutory Durable Power of Attorney

The Texas Legislature has approved major changes to the Statutory Durable Power of Attorney (SDPOA) – the form that allows you to appoint an agent to act for you in certain financial matters – making it imperative to review and consider updating your power of attorney.  Legislators expanded the instrument to include important new powers – including “hot powers” – which may be granted to your agent and may be especially useful for Medicaid Planning, Estate Planning, and Tax Planning purposes.  New agent duties and responsibilities were also added.

The so-called “hot powers” include authorities which may be essential in elder law situations:  for example, the authority to create a trust, to change a beneficiary designation, to create a right of survivorship, and to transfer property to the agent.  Previously elder law attorneys added similar authorities as customized “Special Instructions,” however now that the Legislature has statutorily defined these authorities and provided new language for implementing them, certain areas of the law that were “gray” are more clearly defined and easily enforced.  All power of attorney documents should be reviewed in light of these major changes.

In addition, your power of attorney may now authorize your agent to appoint an alternate agent not named in the document, if no named agent or alternate agent is available to act, making it unnecessary to draft a new power of attorney in this situation. 

The general power of attorney was updated to include a new section to authorize the agent to act with respect to digital assets and the content of an electronic communication. The new language empowers the agent to access digital assets as provided in the Texas Revised Uniform Fiduciary Access to Digital Assets Act, which was also recently enacted.

The Legislature also added an important new process for acceptance of a power of attorney by a bank or other person.  The bank, insurance company, or other “person” is required to accept the power of attorney unless one or more statutorily defined grounds for refusal exist. These new provisions and powers make the Texas SDPOA more consistent with the  Uniform Power of Attorney Act, which is the national standard.