State can step in when a parent lacks capacity
Q: My ex-wife is delusional, schizophrenic and lives alone out of state in deplorable conditions, sometimes with no utilities or food. Our son lives in Texas with me and struggles to help her out. She is now eligible for a teacher’s retirement of $800 per month, but she refuses to claim it arguing she is due “millions.” She also refuses to sign a power of attorney or allow us to help. Can my son get a non-consent power of attorney or guardianship? If so, how?
A: There is no such thing as a non-consent power of attorney.
If your son wants to help his mother, he would either need to hire an attorney in the state where she lives and initiate a guardianship or conservatorship proceeding, or alternatively he could contact adult protective services in the state where she lives.
It would seem that adult protective services would be the better option for your son because he probably doesn’t want to spend thousands of dollars on attorneys’ fees. Adult protective services should investigate her circumstances and living conditions, and then take steps to help her.
Q: I am the agent under my mother’s power of attorney.
The bank will not recognize the power of attorney. First, they said her name doesn’t match the account, and I would need a person who knows her to send a letter stating that she is the same person. We did that, and now the bank says that because it was signed in 2017, it needs to be updated before they will recognize it. She now has dementia and is in a nursing home and is not able to sign
another one. What are my options?
A: For years, banks routinely refused to accept powers of attorney which were presented to them, often claiming the powers of attorney were more than 90 days old. Of course, the whole point of signing a power of attorney is to allow someone to handle your business affairs years after you sign the form.
That led to a change in Texas law as of Sept. 1, 2017.
As of that date, a bank (and any other business) must accept a power of attorney unless one or more grounds exist which justify their refusal. The list is too long to summarize here, but you can read it online by searching Section
751.206 of the Texas Estates Code.
At this point you should consider hiring an attorney to help you force the bank to accept the power of attorney. You might want to start by calling the attorney who drafted the document for your mother.
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 questions are addressed here, should consult attorneys for advice on their particular circumstances. Ronald Lipman of the Houston law firm Lipman & Associates is board-certified in estate planning and probate law by the Texas Board of Legal Specialization. Email questions to stateyourcase@ lipmanpc.com.