Could we be liable if our mother drives while incapacitated?

Full question:

My mother has been experiencing some dementia and has over medicated herself. My sister and I have a durable power-of-attorney on file to handle her affairs. However, since she has not been medically declared incapacitated to handle her affairs could we be held responsible if she were to drive and have an accident, or if she cause harm to herself by over medicating?

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

Answer:

As agents under a durable power of attorney, you have certain responsibilities. If your mother, the principal, makes decisions that conflict with your guidance, her decisions will typically prevail, provided she is consulted beforehand. An agent must act in the principal's best interest and follow their directions. Agents are considered fiduciaries, meaning they must act with the utmost good faith on behalf of the principal.

Agents must keep their finances separate from the principal's, maintain detailed records of all transactions, and cannot profit from transactions made on behalf of the principal unless explicitly allowed by the power of attorney. If an agent acts against the principal's interests for personal gain or exceeds their authority, they may be held personally liable.

Generally, agents are not personally liable under a power of attorney as long as they do not exceed or abuse their authority. Courts will assess whether there has been a breach of fiduciary duty based on the specific circumstances. Factors considered may include whether the agent benefited at the principal's expense or failed to disclose important information.

If a person becomes incapacitated without a power of attorney in place, establishing a guardianship may be necessary to manage their welfare and financial affairs. Guardianships can cover personal care, financial matters, or both.