10/11/2015:MD said that someone commented on one of my last blogs and asked if we would post a copy of our POA and the contract we share. i thought i would share the POA first. Even though the contract is binding and shows the degree of our WLM to which we committed, the POA is still the most amazing document to me. In a contract, both parties “get” something. By definition there must be “consideration” for both parties for a contract to be legal. In the POA there is almost no “consideration”. i legally agree to allow MD to make any and all decisions for me. She can sign legal documents; She can open or close bank accounts; MD can even sign buy or sell property without me. MD can take the document anywhere and basically do anything on my behalf without my consent or even my knowledge. And to make it more ironclad, the POA is irrevocable, i do not have the right to one day “change my mind”. Even if we were to get a divorce sometime in the future, MD would still retain the authority of the POA, as that was removed as a reason for the revocation of the POA. There are only three “outs” in the contract: death, MD voluntarily relinquishes POA authority or by court order, which MD could fight.
i think that is why i find the POA the part of our agreement the most authoritative. The contract may be amended each year and resigned. The POA is “one and done”. It is non-negotiable and legally binding. i committed last April that MD would have full authority over me and She accepted that authority and plans on using and retaining that control. Not only do i voluntarily submit to Her, i am legally under Her control as well.
i have included a redacted version of the signed and notarized document, which MD has locked up in Her safe. (i believe She also has a scanned copy on Her personal email account which i do not have access to.) Though this document does not allow MD to make medical decisions for me, that is covered in a Medical Durable Power of Attorney/Living Will which She has on me as well.
TEXAS STATUTORY DURABLE POWER OF ATTORNEY
NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, SUBTITLE P, TITLE 2, ESTATES CODE. IF YOU HAVE ANY QUESTIONS ABOUT THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS FOR YOU.
You should select someone you trust to serve as your agent (attorney in fact). Unless you specify otherwise, generally the agent’s (attorney in fact’s) authority will continue until:
(1) you die;
(2) your agent (attorney in fact) resigns or is unable to act for you; or
(3) a guardian is appointed for your estate.
I, _____________, residing at XXX Texas, appoint______________, residing at XXX Texas, as my agent (attorney in fact) to act for me in any lawful way with respect to all of the following powers that I have initialed below.
TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN FRONT OF (N) AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS LISTED IN (A) THROUGH (M).
TO GRANT A POWER, YOU MUST INITIAL THE LINE IN FRONT OF THE POWER YOU ARE GRANTING.
TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF THE POWER. YOU MAY, BUT DO NOT NEED TO, CROSS OUT EACH POWER WITHHELD.
____ (A)Real property transactions;
____ (B)Tangible personal property transactions;
____ (C) Stock and bond transactions;
____ (D) Commodity and option transactions;
____ (E) Banking and other financial institution transactions;
____ (F) Business operating transactions;
____ (G) Insurance and annuity transactions;
____ (H) Estate, trust, and other beneficiary transactions;
____ (I) Claims and litigation;
____ (J) Personal and family maintenance;
____ (K) Benefits from social security, Medicare, Medicaid, or other governmental programs or civil or military service;
____ (L) Retirement plan transactions;
____ (M) Tax matters;
XX (N) ALL OF THE POWERS LISTED IN (A) THROUGH (M). YOU DO NOT HAVE TO INITIAL THE LINE IN FRONT OF ANY OTHER POWER IF YOU INITIAL LINE (N).
Special instructions applicable to gifts (initial in front of the following sentence to have it apply):
XXI grant my agent (attorney in fact) the power to apply my property to make gifts outright to or for the benefit of a person, including by the exercise of a presently exercisable general power of appointment held by me, except that the amount of a gift to an individual may not exceed the amount of annual exclusions allowed from the federal gift tax for the calendar year of the gift.
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.
XX This Statutory Durable Power of Attorney Agreement shall be irrevocable, and I, ________________ expressly waive all rights and powers, whether alone or in conjunction with others,
and regardless of when or from what source may have acquired such rights or powers, to alter, amend, revoke, or terminate the Agreement or any of the terms of this Agreement, in whole or in part.
THIS POWER OF ATTORNEY IS EFFECTIVE 04/07/2015 AND HAS NO TERMINATION DATE.
CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE ALTERNATIVE NOT CHOSEN:
(A) This power of attorney is not affected by my subsequent disability or incapacity.
(B) This power of attorney becomes effective upon my disability or incapacity.
YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT YOU CHOSE ALTERNATIVE (A).
If Alternative (B) is chosen and a definition of my disability or incapacity is not contained in this power of attorney, I shall be considered disabled or incapacitated for purposes of this power of attorney if a physician certifies in writing at a date later than the date this power of attorney is executed that, based on the physician’s medical examination of me, I am mentally incapable of managing my financial affairs. I authorize the physician who examines me for this purpose to disclose my physical or mental condition to another person for purposes of this power of attorney. A third party who accepts this power of attorney is fully protected from any action taken under this power of attorney that is based on the determination made by a physician of my disability or incapacity.
I agree that any third party who receives a copy of this document may act under it. Revocation of the durable power of attorney is not effective as to a third party until the third party receives actual notice of the revocation. I agree to indemnify the third party for any claims that arise against the third party because of reliance on this power of attorney.
If any agent named by me dies, becomes legally disabled, resigns, or refuses to act, I name the following (each to act alone and successively, in the order named) as successor(s) to that agent: ______(Left Blank Intentionally)_________________________________________________.
Signed this __7th___ day of _April___, __2015__
State of ___TEXAS__________
County of ______________
This document was acknowledged before me on ____________(date) ________________ (name of principal).
(signature of notarial officer)
(Seal, if any, of notary) ________________________________________
(printed name) ________________________________________
My commission expires: ______________
IMPORTANT INFORMATION FOR AGENT (ATTORNEY IN FACT)
When you accept the authority granted under this power of attorney, you establish a “fiduciary” relationship with the principal. This is a special legal relationship that imposes on you legal duties that continue until you resign or the power of attorney is terminated or revoked by the principal or by operation of law. A fiduciary duty generally includes the duty to:
(1) act in good faith;
(2) do nothing beyond the authority granted in this power of attorney;
(3) act loyally for the principal’s benefit;
(4) avoid conflicts that would impair your ability to act in the principal’s best interest; and
(5) disclose your identity as an agent or attorney in fact when you act for the principal by writing or printing the name of the principal and signing your own name as “agent” or “attorney in fact” in the following manner:
(Principal’s Name) by (Your Signature) as Agent (or as Attorney in Fact)
Termination of Agent’s Authority
You must stop acting on behalf of the principal if you learn of any event that terminates this power of attorney or your authority under this power of attorney. An event that terminates this power of attorney or your authority to act under this power of attorney includes:
(1) the principal’s death;
(2) if ordered by a court, the suspension of this power of attorney on the appointment and qualification of a temporary guardian until the date the term of the temporary guardian expires.
Liability of Agent
The authority granted to you under this power of attorney is specified in the Durable Power of Attorney Act (Subtitle P, Title 2, Estates Code). If you violate the Durable Power of Attorney Act or act beyond the authority granted, you may be liable for any damages caused by the violation or subject to prosecution for misapplication of property by a fiduciary under Chapter 32 of the Texas Penal Code.
THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL RESPONSIBILITIES OF AN AGENT.
Looks good to me. Obviously it’d need varied in other jurisdictions, but same principle can apply.
More interested in the contract though…..LOL!