Why you might not want to be an agent or power of attorney for someone

Below is the current law in Texas regarding the legal obligations of any person that becomes an agent and/or power of attorney for another person. It is scary - you can be sued. This is why many people refuse to serve -- the liability and risk is just too great.  

So before you agree to be someone's agent or power of attorney PLEASE talk to a lawyer in person about this matter.

IMPORTANT INFORMATION FOR AGENT (ATTORNEY IN FACT)

Agent's Duties

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)

In addition, the Durable Power of Attorney Act (Subtitle P, Title 2, Estates Code) requires you to:

(1)        maintain records of each action taken or decision made on behalf of the principal;

(2)        maintain all records until delivered to the principal, released by the principal, or discharged by a court; and

(3)        if requested by the principal, provide an accounting to the principal that, unless otherwise directed by the principal or otherwise provided in the Special Instructions, must include:

(A)        the property belonging to the principal that has come to your knowledge or into your possession;

(B)        each action taken or decision made by you as agent or attorney in fact;

(C)        a complete account of receipts, disbursements, and other actions of you as agent or attorney in fact that includes the source and nature of each receipt, disbursement, or action, with receipts of principal and income shown separately;

(D)        a listing of all property over which you have exercised control that includes an adequate description of each asset and the asset's current value, if known to you;

(E)        the cash balance on hand and the name and location of the depository at which the cash balance is kept;

(F)        each known liability;

(G)       any other information and facts known to you as necessary for a full and definite understanding of the exact condition of the property belonging to the principal; and

(H)        all documentation regarding the principal's property.

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)        the principal's revocation of this power of attorney or your authority;

(3)        the occurrence of a termination event stated in this power of attorney;

(4)        if you are married to the principal, the dissolution of your marriage by court decree of divorce or annulment;

(5)        the appointment and qualification of a permanent guardian of the principal's estate; or

(6)        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.