How can my husband use his power of attorney for his mother?

Full question:

My husband's 86 year old mother 'Ma Mann' is not making good decisions about her health and financial matters. My husband has a statutory durable power of attorney listing him as the agent in Texas where he and his mom reside. Prior to 3 years ago his mom lived alone in a rural farm home. She then moved to the closest city where her daughter lives and all her doctors, etc. Last week her youngest son got out of prison. He is a multiple sexual offender, multiple DWI's, theft, etc. Ma Mann moved back to her rural home and her wayward son has moved in with her. He is not treating her right and is manipulating and controlling her and she is very vulnerable to him. She thinks she is helping him to 'straighten up'. We are concerned about her safety and being bullied by her youngest son who lives with her now.Our question is - how do we implement my husband's Durable Power of Attorney in all the areas listed on the document? Do we have to have her declared incompetent? If so how do we do that? Or can we just show the document to bank, doctor's, etc and take over her overall management in her best interest? If we do the latter - can that be contested by the wayward son or her? Thanks in advance for your help.

• Category: Power of Attorney
• Date: 04/07/2025
• State: Texas

Answer:

A power of attorney (POA) allows someone to make decisions on behalf of another person. The person who grants this authority is called the principal, and the one who receives it is the agent or attorney-in-fact. If there's a conflict between the principal's decisions and the agent's actions, the principal's decisions take precedence, provided the agent consulted the principal beforehand.

The agent must act in the principal's best interest and follow their directions. As a fiduciary, the agent has a high duty of good faith and must keep the principal's finances separate from their own. They must maintain detailed records of all transactions and cannot profit from their role unless explicitly allowed in the POA. If an agent acts against the principal's interests, they can be held personally liable.

The effectiveness of the POA depends on its specific terms. Some POAs only become effective if the principal is incapacitated. If the document states that it becomes effective upon incapacity, a physician must certify the principal's mental incapacity for the agent to act. The POA may include language like, "I shall be considered disabled or incapacitated... if a physician certifies in writing... that I am mentally incapable of managing my financial affairs." This protects third parties who accept the POA based on the physician's determination.

To determine if your husband's POA is still valid, review the document carefully. If it is not effective, you may need to pursue guardianship if Ma Mann cannot manage her own affairs.