After the divorce, what happens to medical and durable powers of attorney?

Q My husband and I divorced last year. He has not changed his medical or durable powers of attorney, both of which name me as the primary attorney. He has dementia and needs to be placed in a memory care facility. His son is the backup agent, but he lives in another state and deals with his wife’s cancer diagnosis. Do I still have power of attorney? Am I allowed to organize his care?

A. Under Texas law, your authority as an agent under your husband’s durable power of attorney and your husband’s medical power of attorney ended when your divorce became final.

The only exception would be if either document contains language that you must continue to serve as an agent even if you both divorce. Such a provision would be quite unusual in either document.

If your ex-husband’s son doesn’t have time to act as an agent, he can let you do all the legwork, and all he has to do is sign if needed.

Q My mother bought mining rights in Texas many years ago. I receive royalties from some of these holdings, but I’m not sure if there are others that I could have inherited. I don’t even know the exact locations of those currently paying royalties. Can a lawyer write a document that would prevent all my mining interests from being probated upon my death? Also, is the latest version of the deed on death on acceptable for passing a house or land without a will?

A. To avoid probate, a lawyer would need to know what all your assets are and where they are. If you are unable to provide this information, it is not possible to fund a revocable trust or properly complete a transfer deed upon death.

When lawyers prepare revocable trusts, they often also prepare a general assignment form that attempts to place everything you own in the trust. The purpose of this form is to deal with the assets as you described, and it could work after your death if mining interests are discovered later. However, a form like this should not be relied upon to transfer properties to a revocable trust.

There is no statutory transfer-at-death form in Texas. (There was a form several years ago, but it was repealed because it was so poorly written and confusing. The Texas Legislature instructed the Texas Supreme Court to develop a new one, but no form of this type has not yet been created.) As a result, the form that is available on the website you referenced should work, if properly completed and saved.

The information in this column is intended to provide a general understanding of the law, not legal advice. Readers with legal problems, including those whose issues are addressed here, should consult attorneys for advice on their particular situation. Ronald Lipman of the law firm of Houston Lipman & Associates is certified in Estate Planning and Inheritance Law by the Texas Board of Legal Specialization. Email your questions to [email protected]

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