A durable power of attorney is a written document that allows you to designate someone you trust to engage in specified business, financial and legal transactions on your behalf. It’s called “durable” because it does not terminate if you become disabled or incapacitated.
But what if the person you name as your agent becomes estranged? Or what if you discover that the person you named and trusted acted in a less than trustworthy manner? In such a situation, it’s likely that you would want to revoke the power of attorney and name someone else to serve as you agent.
Section 488 of the Texas Probate Code indicates that a durable power of attorney can be revoked; however, it does not provide specific instructions for accomplishing this. The statute provides:
“Unless otherwise provided by the durable power of attorney, a revocation of a durable power of attorney is not effective as to a third party relying on the power of attorney until the third party receives actual notice of the revocation.”
How does this play out in the real world?
If a power of attorney has remained unused in a safe place and you have not recorded it in the court records, then destroying the power of attorney and creating a new one will serve as a revocation. However, if the power of attorney has been used or recorded in court records, then the revocation will not be effective as to third parties unless they have actual knowledge of the revocation.
This may require you to ask the agent to return the original power of attorney, contact every establishment in which the agent has used the power of attorney and file a revocation in the court records. To preserve your ability to revoke a power of attorney, you should keep it in a safe place until you become incapacitated.
Just be sure that whoever you name as your agent knows where it is located.
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