Guardianship may be the most feared proceeding known to the law. If you can’t manage your business, a probate judge can appoint a guardian for you. The expense of court supervision is ruinous, and it continues for the rest of your life.
Thoughtful clients (principals) avoid guardianship by giving family or friends (agents) power of attorney, enabling the agent to take care of the principal’s business free from court supervision. The principal can sign a statutory durable power of attorney while still in the prime of life, long before the need for an agent or guardian arises. They name someone that’s mature, if not their same age. Years, even decades pass. By the time the principal is enfeebled and needs an agent, often, so does the named agent.
Best practice is to name one or two alternate agents. That way, if the primary agent is unable or unwilling to serve, there are backups.
Who knows when the successor takes over?
What if you are first or second alternate agent under someone else’s power of attorney, and your predecessors have died or become disabled? When you go to the bank, how do they know it’s your turn? Once upon a time, the answer required a form or a letter from a lawyer, which is expensive.
There’s now a free form
Effective September 1, 2018, the State of Texas promulgated a form Certification of Durable Power of Attorney by Agent, found at Texas Estates Code § 751.203. Look at paragraph 6:
I am the successor to ______________________ (predecessor agent), who has resigned, died, or become incapacitated, is not qualified to serve or has declined to serve as agent, or is otherwise unable to act. There are no unsatisfied conditions remaining under the power of attorney that preclude my acting as successor agent.
For better or worse, this provision allows a successor agent to confirm his or her authority without anyone else’s signature, consent, or even knowledge. No agreement, resignation letter, death certificate, or medical examination required. Just print, complete, and sign this form.
Be thoughtful about it
A successor should not casually assume the role of agent. When a successor is ready to step up, he or she should make reasonable inquiry of each predecessor agent. Are they dead, disabled, or disinterested? Do they approve or oppose the successor’s acceptance of the appointment? What is the reason they cannot or should not serve? Once the new agent is committed and signs and delivers the Certification to begin taking care of the principal’s business, I recommend sending each living predecessor a copy, so that each is aware that someone new is in charge.
