Conceptually, granting someone a Power of Attorney is rather simple.  Let us take a simple situation.  You are about to travel out of town.  While out of town you want to make sure that if anything comes up someone will be able act on your behalf.  Your son lives nearby and he is a responsible young adult.  The simplest way to accomplish this goal is to grant your son a Power of Attorney over your affairs while you are gone.  If you grant your son a Power of Attorney, your son will be legally known as your “agent” or “Attorney-in-Fact.”  He will be able to act on your behalf to the extent you grant him the authority.

Power of Attorney’s are that simple.  The person granting the authority under a Power of Attorney is called the principal.  The person acting on the principals behalf is called the agent.  In the above scenario Parent was the principal and Son was the agent.  The agent’s authority derives from the powers granted in the Power of Attorney.

Power of Attorney’s do not last forever.  Let me say that again, Power of Attorney’s do not last forever.  A Power of Attorney will expire 1) when revoked, 2) by the terms of the Power of Attorney, 3) incapacity unless it is a durable power of attorney (discussed below), and 4) on the death of the Principal.   I have talked to numerous people who have indicated — “Well, my Dad passed away last December but I have a power of attorney.”  The authority under the power of attorney ceased when Dad passed away.  In other words, the agent can no longer act on behalf of Dad.  A different set of legal tools would be required to take care of Dad’s estate.  (See the Will/Probate and Estate Planning Section).

I indicated that a Power of Attorney “expires” on the incapacity of the principal.  This is the default rule/law.  A principal can execute what is called a “Durable Power of Attorney.”  This is a special type of power of attorney that allows the agent to act on the principals behalf, even if the principal is incapacitated.  Why is this important?  Well, if you do not have a durable power of attorney and you become incapacitated, the law, judges, and attorneys will decide who will make decisions for you.

Powers of Attorney are common tools in estate planning and other legal transactions.  They are flexible and powerful legal documents.  As the principal, you can give as much authority to your agent for almost any duration during your life or you can grant you agent the authority to act on your behalf in a very narrow way for a very limited period of time.

As we enter the full swing of the 2009 holiday season, Strickland & Associates would like to wish you and everyone happy holidays.

I was at the office today and on one of my listserv’s there has been a long discussion on online wills, legal self help online services (e.g. LegalZoom.com) and the like.  I hesitated to mention the issue on our blog because, well, they are sorda a competitor.  I then thought about it more and, No, they are not really a competitor.  In fact, as one attorney on the listserv put it

I make more money off of holographic [handwritten] wills and online wills than I do my everyday estate planning business.

Why would the attorney make more money off of these services?  Because these services are “cookie” cutter services.    They are generic forms.

Legal issues are not cookie cutter!  Do you have the exact same issue as your neighbor?  Your brother?  Or another relative?  You make the same amount of money as they do?  Are you married?  Are you the same age?  Do you have the same number of kids?  Are you going to retire at the same time?  Do you all have the same value house?  Do you have the same skills related to the managment of money or stress related to life decisions?

There are numerous questions that need to be asked and evaluated.  Yes!! Evaluated to determine the best course of action.

In one of the conversations an attorney by the name of Mike recounted this joke:

…there is an old joke about the patient who was outraged at the $100,000 invoice from his surgeon for heart surgery and asked for a breakdown of the charges. The doctor’s reply was

1. Performing heart surgery – $10,000

2. Knowing where to cut – $90,000

The following blog discusses this issue in a little more depth — http://ricksblog.lawelderlaw.com/self-help-legal-switcheroo/

Most businesses transform their business or start an LLC to take advantage of the Limited Liability.  When a business operates as a Limited Liability Corporation, the law provides its members/owners protection from individual liability from the actions of its employees or other members.

For example, an employee of the is delivering a product to a customer and while delivering the product, the employee is in an accident.  If the LLC is properly formed, its members/owners are protected from individual liability form the actions of the employees.  If the company is sued due to the actions of the employee and opposing side is successful in their lawsuit, the judgment awarded against the company must be satisfied by the company’s assets.

As mentioned, the LLC will provide protection against the actual members/owners from being personally liable for the judgment.  It is important that the LLC is formed correctly and operated correctly.  If the LLC is not formed properly or if the members/owners do not run the LLC properly, the members/owners may be liable for the judgments as well.

There are numerous factors to consider when forming a LLC and operating a LLC to ensure the members/owners are protected.  There are also tax consequences for each structure.

The the document titled “Affidavit of the Voluntary Termination of Parental Rights” is somewhat misleading.  Some believe that by signing this document and doing nothing more, a person’s parental rights are terminated.  No!!!

The Affidavit is just an Affidavit.    The affidavit is used in several contexts.  One context is where a parent wishes to give his/her child up for adoption at birth.  Another, and the area where I have seen it the most, is when the biological parent wishes to allow the step-parent to adopt their child.

The Affidavit allows the parent who wishes to voluntarily terminate his parental rights to express those wishes.  It does not, in of itself, terminate parental rights.  A court must terminate the parental rights.   The Affidavit can have language which would waive all future notice of adoption proceedings, etc. which simplifies the process but a court must terminate the parental rights.

Section 154.006 of the Texas Family Code specifically spells out the circumstances for ending support.  The first place to look regarding Child Support Obligation is the Final Decree of Divorce and the Martial Settlement Agreement.  Your Agreement or Final Divorce Decree should spell out the duration of the support obligation.

It is possible for your support obligation to last beyond the high school graduation in certain circumstances; however, if it does last beyond your child’s graduation you probably already know when the support ends.  You and the other parent of the child can agree on a specific date on when the support ends.  In this case, the support would last until that agreed time frame.  (“Unless otherwise agreed in writing..”  See Section 154.006 of the Texas Family Code.)

If your child is disabled, then child support can last for an indefinite period of time.

Further, if the parent you have been paying child-support is still the conservator (e.g. the child has not been taken into state custody, grandparents do not have legal custody, etc.) and you marry or remarry the parent, the the support obligation terminates.

Sec. 154.001.  SUPPORT OF CHILD.  (a)  The court may order either or both parents to support a child in the manner specified by the order:

(1)  until the child is 18 years of age or until graduation from high school, whichever occurs later;

(2)  until the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law;

(3)  until the death of the child; or

(4)  if the child is disabled as defined in this chapter, for an indefinite period.

(a-1)  The court may order each person who is financially able and whose parental rights have been terminated with respect to a child in substitute care for whom the department has been appointed managing conservator to support the child in the manner specified by the order:

(1)  until the earliest of:

(A)  the child’s adoption;

(B)  the child’s 18th birthday or graduation from  high school, whichever occurs later;

(C)  removal of the child’s disabilities of minority by court order, marriage, or other operation of law; or

(D)  the child’s death; or

(2)  if the child is disabled as defined in this chapter, for an indefinite period.

(b)  The court may order either or both parents to make periodic payments for the support of a child in a proceeding in which the Department of Protective and Regulatory Services is named temporary managing conservator. In a proceeding in which the Department of Protective and Regulatory Services is named permanent managing conservator of a child whose parents’ rights have not been terminated, the court shall order each parent that is financially able to make periodic payments for the support of the child.

(c)  In a Title IV-D case, if neither parent has physical possession or conservatorship of the child, the court may render an order providing that a nonparent or agency having physical possession may receive, hold, or disburse child support payments for the benefit of the child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 39, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 556, Sec. 8, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch. 268, Sec. 1.08(a), eff. September 1, 2005.

Sec. 154.002.  CHILD SUPPORT THROUGH HIGH SCHOOL GRADUATION.  (a)  The court may render an original support order, or modify an existing order, providing child support past the 18th birthday of the child to be paid only if the child is:

(1)  enrolled:

(A)  under Chapter 25, Education Code, in an accredited secondary school in a program leading toward a high school diploma;

(B)  under Section 130.008, Education Code, in courses for joint high school and junior college credit; or

(C)  on a full-time basis in a private secondary school in a program leading toward a high school diploma; and

(2)  complying with:

(A)  the minimum attendance requirements of Subchapter C, Chapter 25, Education Code; or

(B)  the minimum attendance requirements imposed by the school in which the child is enrolled, if the child is enrolled in a private secondary school.

(b)  The request for a support order through high school graduation may be filed before or after the child’s 18th birthday.

(c)  The order for periodic support may provide that payments continue through the end of the month in which the child graduates.

Texas Family Code Section 154.002

Sec. 154.006.  TERMINATION OF DUTY OF SUPPORT.  (a)  Unless otherwise agreed in writing or expressly provided in the order or as provided by Subsection (b), the child support order terminates on:

(1)  the marriage of the child;

(2)  the removal of the child’s disabilities for general purposes;

(3)  the death of  the child;

(4)  a finding by a court that the child:

(A)  is 18 years of age or older; and

(B)  has failed to comply with the enrollment or attendance requirements described by Section 154.002(a); or

(5)  if the child enlists in the armed forces of the United States, the date on which the child begins active service as defined by 10 U.S.C. Section 101.

(b)  Unless a nonparent or agency has been appointed conservator of the child under Chapter 153, the order for current child support, and any provision relating to conservatorship, possession, or access terminates on the marriage or remarriage of the obligor and obligee to each other.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1999, 76th Leg., ch. 556, Sec. 9, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 38, Sec. 2, eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 972, Sec. 9(a), eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 1404, Sec. 1, eff. September 1, 2007.

I am equally confident that most people do not realize that in the state of Texas a will is not effective if it is not probated.  In other words, just because Mom gave the home to brother in her will, if the will is not probated, then that provision is ineffectual.  Texas Probate Code Section 94 speaks to this provision specifically:

Except as hereinafter provided with respect to foreign wills, no will shall be effectual for the purpose of proving title to, or the right to the possession of, any real or personal property disposed of by will, until such will has been admitted to probate.

So that will that has been sitting on the cabinet “declaring” the home was given to you by Mom is not effective unless the has been probated in the state of Texas or the foreign will provisions of the Texas Probate Code apply.

If you and/or you family members decide they wish to probate the will, don’t sit on that decision too long.  Generally speaking, a will must be probated within in four (4) years of the death of the testator.  There is an exception to this four year rule but I will leave that for a later discussion.

Bottom Line:  A will must be probated to be effective and, generally speaking, the will must be admitted to probate within four (4) years of the death of your loved one.

The post was not speaking on the broader question on whether once one disinherits a child in their will, whether that disinheritance can be challenged.  The simple answer to that question is “yes” it might be challegned in probate.  For that matter, a disinheritance acheived through a provision in a trust may be challegned as well.

The point is that a person may disinherit a child; however, just because you disinheirit a child, does not prevent that child from challenging such disinheritance when you pass away.  The child will not challenge the actual disinheritance but rather challenge it in other ways.  For example, he/she may say you were unduely influenced in making a change in your will.  He/She may attempt to show your were coerced in some way.

I will write later on In Terrorem Clauses as a way to potentially mitigate those challenges.

Each of the these methods of obtaining “personal” service have a certain procedure to be followed.  This post today is focused on how a defendant can waive that service.

Why would a defendant waive service?  I can think of numerous reasons and will name a couple here.  If the defendant does not contest venue/jurisdiction of the court, the defendant may just decide to move on to the next step of litigation so the he/she can defend the lawsuit.   In uncontested divorces cases, it is common for the defendant to waive service.  Often time, in an uncontested divorce, the parties are wanting to get the process over with.  By waiving service, the defendant allows the plaintiff to move forward.  If the defendant is concerned with the Plaintiff’s cost of litigation, by waiving service, it reduces the cost somewhat.

What is a waiver of service?  As the name implies, it is a waiver by the defendant to the requirements of service.  Specifically, it is a document signed by the defendant, an authorized agent or attorney of the defendant, and notarized.  The document should state the defendant waives service and received a copy of the pleadings.  In a divorce action, the defendant’s mailing address should also be included.

By waiving service, the defendant is accepting the lawsuit and the waiver has the same force as if citation had been issued by the clerk and served according to law.

RULE 119. ACCEPTANCE OF SERVICE
The defendant may accept service of process, or waive the issuance or service thereof by a written
memorandum signed by him, or by his duly authorized agent or attorney, after suit is brought, sworn
to before a proper officer other than an attorney in the case, and filed among the papers of the cause,
and such waiver or acceptance shall have the same force and effect as if the citation had been issued
and served as provided by law. The party signing such memorandum shall be delivered a copy of
plaintiff’s petition, and the receipt of the same shall be acknowledged in such memorandum. In every
divorce action such memorandum shall also include the defendant’s mailing address.

Texas Civil Procedure Rules

On several occasions this weekend, I had the pleasure to speak to others about wills and estate planning.  One common reason that all the individuals I spoke to did not already have a will was that “I don’t have anything but debt.”  One gentleman jokingly stated that he would be dead and so it did not really matter at that point.  Perhaps he wasn’t joking, who knows.  I often hear “I don’t have anything” as the reason a person has not spoken to an attorney about estate planning or preparation of a will.  I suspect if a poll was conducted, it would probably be in the top 10 reasons, if not the top 5 reasons, individuals do not take the time to prepare a will and other necessary estate planning documents.

It also illustrates a fundamental misunderstanding at the importance of having a will and other estate planning documents prepared.  I suppose there is a good percentage of people who do not care what happens to their belongings or who is fighting over who gets what.  I also suspect there is a good percentage of people who DO care who will make decisions for them or their children if they were to become incapcitated.  Few people “plan” on becoming incapcitated but it happens often.  Estate planning documents generally will include a will, durable power of attorney, medical power of attorneys, mental health power of attorneys, declaration of guardianship, declaration of guardianship for a minor child, HIPPA releases, and other relevant documents.  These documents allow you to make your wishes known to others and allows others to make decisions for you on your behalf.  Questions like — Do you want to remain on life support indefinately?  Who do you want to take care of the son/daughter if you become incapcitated or if you die?