Powers of Attorney: When Can/Should You Accept Them?

by TSSA Legal Counsel

A power of attorney is a document that gives someone else the legal power to act on behalf of someone. The person who is given the power of attorney is called the agent or attorney-in-fact. It is not necessary to get an attorney in order for someone to give you a power of attorney. For example, relatives might give them to each other temporarily, when one of them leaves the country and wants someone local to be empowered to act on their behalf in the event of an emergency. This blog post will answer basic questions about powers of attorney.

WHO CAN GRANT ONE?

Any adult (age 18 or older) of sound mind.

WHAT IS THE PURPOSE OF A POWER OF ATTORNEY?

To show other people that an agent has been legally appointed to act on behalf of the person who made the appointment.

WHAT ARE THE TYPES OF POWERS OF ATTORNEY?

Typically, they are broad (granted to do most anything on someone’s behalf) and special (granted for a particular purpose; for example, limited to selling a certain house). There are also subcategories of durable (the power of attorney is still valid even if the person granting the power of attorney becomes incompetent or becomes valid only upon someone becoming incompetent) and non-durable (the power of attorney is automatically voided if the person granting it becomes incompetent).

AM I REQUIRED TO ACCEPT POWERS OF ATTORNEY?

You are not required to allow someone to enter into a new lease using a power of attorney, just like you are not required to lease to anyone and everyone who walks in your door. In other words, you are not required to initiate a new customer transaction with a power of attorney holder. However, if the holder wants to take action the tenant would otherwise have the right to take (for example, give a 10-day notice of lease termination), then in cases of a durable power of attorney, you must honor the power of attorney holder’s right to act (this is relatively new law in Texas, meant to assist with administering estates of the deceased). In lieu of automatically honoring the durable power of attorney though, you have the right to first require the power of attorney holder to issue you an agent’s certification (Texas Estates Code §751.203) in which the power of attorney holder certifies to you under penalty of perjury that the power of attorney is genuine. You may, in lieu of this certification from the power of attorney holder, request an attorney’s opinion (§751.204).

WHAT SHOULD I DO IF I’M PRESENTED WITH A POWER OF ATTORNEY?

It is up to each facility to establish this protocol. You don’t want to be unaccommodating to legitimate needs for power of attorney, nor do you want to be defrauded into accepting a fraudulent one. If you are presented with a durable power of attorney (the powers continue after someone becomes incompetent, or only spring to life when someone becomes incompetent) and are hesitant to accept it, the reply can be “Please present me with an agent’s certification, or an opinion of counsel, prior to my acceptance of your power of attorney.” If you are presented with a non-durable power of attorney (it does not contain language confirming its validity should someone become incompetent), then you may, but don’t have to, accept it. The authorization is a durable power of attorney if, and only if, it has the following language, “This power of attorney is not affected by subsequent disability or incapacity of the principal” or “This power of attorney becomes effective on the disability or incapacity of the principal.” A durable power of attorney also must be signed and acknowledges under oath (very similar to signing before a notary). In summary, powers of attorney are legitimate legal documents. In some cases (with durable powers of attorney when you already have an ongoing relationship with the granter of the power of attorney) you are legally required to honor them. However, even in these cases, you may ask for further legal documentation.

 

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