Power of attorney questions

What is a power of attorney? 
A power of attorney is a legal document. Martina made a power of attorney to give you legal authority to make decisions about her money or property. In Texas, a durable power of attorney often is effective immediately and continues to be effective after Martina gets sick. Texas law also allows Martina to make her power of attorney effective only after she gets sick. 

It is important to read Martina’s power of attorney carefully. It will tell you the areas in which you may act on her behalf. 

Can Martina still manage her money and property after signing a power of attorney? 
Yes, as long as she is still able to make decisions. 

Am I personally responsible for Martina’s debts? 
No, you are not personally liable for Martina’s debts or decisions you make on her behalf unless you acted beyond your authority or did not disclose that you were acting as Martina’s agent. 

Can a power of attorney be changed or revoked? 
Martina can take away (or revoke) your authority to act as her agent at any time if she wants to and is still able to make decisions. If she does take away your authority as her agent, you must stop making decisions for her. Martina or you should tell any people or businesses you were dealing with about her decision to take away your authority. 

Do I have to serve as Martina’s agent? 
No. Just because Martina named you in her power of attorney does not mean that you have to serve as her agent. If you do not want to serve, you should let Martina know so that she can find someone else. But, if you decide to serve as Martina's agent, you cannot delegate your atuhority to act as her agent to anybody else unless Martina gave you that power.

What if you think the change was the result of fraud or abuse? 
If you think Martina does not understand a decision she made to take away your authority as her agent, then talk to a lawyer, contact Adult Protective Services, or call the police or sheriff. There is more information on fraud and abuse as well as where you can go for help in the "Watch out for Financial Exploitation," "Be on guard for consumer scams," and "Where to Go for Help" sections of this guide. 

When do your responsibilities end? 
Under Texas law, your authority under Martina’s power of attorney ends (or may be suspended) automatically if one of the following events occurs:

  1. Martina dies;
  2. Martina takes away (or revokes) your authority under her power of attorney by, for example, making a new power of attorney that does not grant you the authority to act as her agent and that revokes any previous powers of attorney;
  3. a specific event happens that is included in the language of the power of attorney to end your authority or the purpose of the power of attorney is accomplished;
  4. if you are married to Martina, the end of your marriage to Martina by divorce or annulment;
  5. the appointment of a temporary or permanent guardian for Martina by a court, unless there is a court order affirming and stating the effectiveness of Martina's powerof attorney and confirming the validity of your appointment as Martina's agent; or
  6. a court ordering an end to your authority. 

Once your authority to act as Martina’s agent ends, promptly notify her bank or other businesses with which you interacted as her agent. You should let these entities know that you no longer have authority to act as Martina’s agent. 

Remember, even if you can easily pay some of her outstanding bills, you no longer have the authority to do so once you are no longer Martina’s agent. 

What if you can no longer serve as Martina’s agent? 
You should step down from serving as Martina’s agent if you can no longer serve. Texas law permits Martina to name successor agents to serve in your place in her power of attorney. Read the power of attorney and see if Martina named any successor agents. If she did, let that person know that he or she is now Martina’s agent. If Martina did not name someone to serve as her agent after you and if she cannot name someone else to act for her, tell a trusted family member or a government agency, such as Adult Protective Services or the Department of Aging and Disability Services. If you cannot act as her fiduciary, she will need someone else to help her.

Can I manage Martina's digital assets?
A digital asset is an electronic record in which Martina has a right or interest.  Martina’s email, social media, and online bank accounts are common examples of digital assets.  The person or business that carries, maintains, processes, receives, or stores Martina’s digital assets is called a custodian.

Whether you can manage Martina’s digital assets will depend on the authority Martina granted you.  If Martina named you as a designated recipient of her digital assets with the custodian, then you should be able to manage those assets.  Otherwise, read Martina’s power of attorney carefully to see if Martina expressly gave you the power to manage some or all of her digital assets.  But, if Martina named someone else as the designated recipient of some or all of her digital assets, you likely will be unable to manage those digital assets, regardless of whether Martina gave you that power in her power of attorney.    

When you contact a custodian in order to manage Martina’s digital assets held by that custodian, have the following documents ready, in case the custodian wants to review those documents:

  1. a written request regarding the management of Martina’s digital assets;
  2. Martina’s power of attorney granting you authority over some or all of her digital assets;
  3. a certification by you (under penalty of perjury) that Martina’s power of attorney is in effect; and
  4. a unique identifier (e.g., Martina’s username) for Martina’s digital assets held by the custodian and/or evidence linking Martina to those digital assets.

You always should remember that you owe Martina fiduciary duties, including a duty to keep Martina’s information confidential, when managing her digital assets.  Texas law prohibits you from managing Martina’s digital assets by impersonating Martina.    

Do others have to accept Martina's power of attorney?
Typically, yes, although the custodian of Martina’s digital assets might require that Martina have named you using its form.  Also, the person to whom you present Martina’s power of attorney may ask you for a translation of Martina’s power of attorney (if it was not in English) or for a certification by you or an opinion by an attorney regarding Martina’s power of attorney.  Talk to an attorney if you have trouble getting somebody to accept Martina’s power of attorney.

Tell people that you are Martina’s agent.

Under Texas law, you need to disclose that you are Martina’s agent acting under her power of attorney to avoid personal liability for decisions you are authorized to make on her behalf. As a best practice, if possible, make your disclosure in writing and repeat it each time you act on Martina’s behalf. One thing you can do that could help make this disclosure is to add “agent under Martina’s power of attorney” or “only in my capacity as agent for Martina” after your signature when you sign a document on Martina’s behalf.

Don’t expect others to know what an agent is or does.

They may not understand that you have been named as an agent. They may think that you have more authority or less authority than you really have. You may need to educate them. You could show them this Guide.