Many people know they can find the Statutory Power of Attorney form online. But what they do not usually understand is the extent of the authority they are giving to their agent and how the form needs to be filled out properly to be accepted once incapacity occurs.
Giving a person agency over your financial affairs means they step into your shoes and can do all kinds of things, such as, sell your house, cars, spend your money, make investments on your behalf, etc. Therefore you should makes sure you do not not give away too much authority!
Texas law does provide that an agent under a power of attorney owes the principal a fiduciary duty. However, many times it is all but difficult to recover lost money or assets because the agent has already spent the money or disposed of the assets.
Therefore, the important lesson is to choose your agent carefully and use an attorney to make sure the POA does exactly what you need it too!
1. The Business Owner. A properly created business has exhaustive company agreements, succession planning and creditor protection. Unless you have every confidence in your documents, you may want to consider a pre-nup to set up agreements between you and your spouse. I see many family-owned businesses severely disrupted by divorce, especially by the temporary orders phase. Image a couple in crises and both spouses are signatories on the company checking account. Perhaps each believes he/she runs the business and should be able to continue to run it exclusive to the other spouse. Where does a court begin to do what’s in the marital estate’s best interest? It is much easier on the Court if there is an agreement in place.
2. The Second Wife and Step-Mother. The reason wife No. 2 needs a pre-nup has everything to do with the probate code. When a spouse dies without a will and…
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I constantly have clients that open small businesses and they tell me they are using money from friends or family members. I try to warn them about the downside of such arrangements and how to avoid future problems. There are several big mistakes that most people just do not think about in the beginning! However once a problem arises it is usually too late!
Recently I found this great new article that sums it up quite nicely.
Four Landminds to Avoid! by NFIB.com
I do not usually endorse specific businesses but if you are a small business owner you should seriously think about joining an organization called NFIB (“National Federation Of Independent Business”). This organization was formed to bring together small business all over the country and give them a very big voice!
These are 13 things I think all associates should know when starting out in a firm. I hope they help you along your way to becoming a dynamic attorney.
- Respect your Firm. Your firm’s reputation has taken years to establish or is just getting started but either way its reputation is important. Keep in mind that how you act with people in business and social settings can affect the firm’s reputation.
- Respect the Staff. The staff is your most valuable asset. Many times they know more than us and can help you a great deal. As attorneys we sometimes get so busy we forget to “be nice” when asking for help but it really goes a long way.
- Respect the Courts. The court staff is your second most valuable asset. They decide when your hearing is set, when your case is set, help you when you make a mistake, and have the Judge’s ear. Remember the Judge hired them, not some personnel manager. Don’t be dismissive or complain about or to court staff. They aren’t going anywhere and anything you tell them goes straight back to the Judge. Also don’t ever bad mouth opposing counsel because they might just be good friends with the Judge.
- Look the Part. As attorneys we need to set an example for our staff, which means dressing like a professional. When you dress casual, it gives the staff and other attorneys the impression that you don’t take your job seriously. So if you wouldn’t wear it to court then don’t wear it to the office.
- Just do it. When a partner of the firm asks you to handle legal work for them, you just do it. You find a way without making excuses! When you are asked to work on something, then find out when the attorney wants it and when the absolute deadline is so you can plan accordingly. Then get it done.
- You are never 100% right. When a senior attorney asks you a legal question that you are not 100% sure of (which is always) say “I think …..________(fill in the blank with what you think) but let me confirm that for you.” Then go confirm it because the law may have changed since the last time you looked at the issue and you would never want to steer an attorney in the wrong direction.
- Being busy is no substitute for being productive. Billable hours are important, but the most valued associates are those who not only bill, but get the job done correctly. Be a finisher.
- Don’t make excuses. You may get an occasional unfair review, or you may not get along with a particular partner, but law firms are meritocracies. You must own up to your shortcomings, failures and disappointments and learn from them.
- Be the associate everyone thinks they need. You have no idea how much partners value good associates and detest bad associates. They always notice a bad attitude, how you treat the staff, subpar work or a disinterest in your job.
- Learn to develop your own clients. You’ll never develop clients sitting behind your desk. You may not consider yourself a “schmoozer” or think that networking is important. Get over it. So you were told that generating business is not important as an associate? How do you think you’re going to stack up when being reviewed against your colleague with a book of business? If you don’t know how to get started, ask someone!
- Office Hours mean something! If the office has set hours then make sure you are ALWAYS in the office during that time, no exceptions! Otherwise how can a senior attorney utilize you?
- Take vacations. Enjoy your time off, recharge your batteries, and reconnect with family and friends. Just kick butt before you leave and when you get back! Make sure the managing partner and any other attorneys you work with on a regular basis knows you are out but always reachable.
- Stay confident. You are going to screw something up because no one is perfect. You may get reprimanded for it, but you need to stay confident and aggressive. A timid, defensive-minded lawyer will be stressed out, dislike her job and not be very good at it.
“Does my child get to pick who she wants to live with when she is 12?” I get that a lot. The answer is “yes and no.” I know, I’m a big help.
The Texas Family Code allows a child to be interviewed by the judge in chambers so that he or she can express her wishes, but that does not mean he or she is the decider.
This is a mother’s problem. Fathers don’t worry about this near as much as mothers do. Mothers feel that when their children “live” with dad, that the world must think they are a terrible mother. Think about it. People wonder, “How did she lose her children?” or “what did she do?” If a mother “loses custody,” then she must have been arrested or getting treatment. When a child decides that they would prefer to live primarily with dad, mom does not lose…
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This Article was originally published by Building Savvy Magazine (2014)
Most builders are all-too-familiar with the phrase, “Of course we will need a personal guarantor on this note.” Builders in Texas are often expected to ensure the debts of their companies, making them “personal guarantors” for those debts. This practice is not only common in the construction industry, it is expected. But, a bank would never pass up the deep pockets of a business to pursue the personal assets of the individual guarantor, right? Wrong. In Texas, when a personal guarantor waives certain rights under a note, without the same being waived by the guarantor’s company, the bank is left with only one option: sue the individual, not the company!
Texas is generous in protecting borrowers from the sometimes-shady acts of creditors. One of these generosities is Texas’s enactment of anti-deficiency laws. These laws, for example, prevent a bank from foreclosing on a $1-million note secured by property with a fair market value of $1 million, purchasing the property at its own foreclosure sale for $400,000, and then suing the borrower for the $600,000 “deficiency.” The rationale is that, through foreclosure, the bank has recaptured the full amount of the debt—$1 million worth of assets—regardless of the amount it received at foreclosure. A bank is therefore prevented from collecting the same debt twice (i.e., obtaining property at a discounted rate plus a deficiency judgment). Unfortunately however, Texas’s strong preference for “freedom of contract” has allowed banks to utilize language to waive this anti-deficiency protection.
This type of waiver is particularly dangerous for personal guarantors. For instance, imagine that in the situation above, the bank had allowed the original borrower to retain its anti-deficiency protection but had required the personal guarantor to waive the same protection. After foreclosure, the borrower would owe nothing due to the anti-deficiency laws because the bank has received $1 million worth of assets. Technically, however, a “deficiency” still exists on the note because the bank received only $400,000 at foreclosure, which is $600,000 less than the original debt. It is important to understand that nothing prevents the bank from collecting the $600,000 deficiency from the personal guarantor if the guarantor has waived his or her anti-deficiency protection.
So although a guarantor is usually liable only for the amount owed by the original borrower, which in this case is $0, without anti-deficiency protection, the guarantor remains on the hook for the full $600,000 deficiency. It is still unclear whether a court would allow the borrower—the guarantor’s company—to intervene in a suit against the guarantor and assert these anti-deficiency laws on the guarantor’s behalf. It is clear, though, that personal guarantors should seek to avoid this situation altogether. If the bank allows a company to retain its anti-deficiency protection, the personal guarantor should insist that he or she be allowed to do so as well.
Kyle B. Fonville is an associate with Decker, Jones, McMackin, McClane, Hall & Bates, P.C. in Fort Worth. His practice focuses primarily on civil and commercial litigation, including construction matters, and appellate law. He can be reached by phone at 817.336.2400 or by email at firstname.lastname@example.org.
Stephen L. Polozola is a partner with Decker, Jones, McMackin, McClane, Hall & Bates, P.C. in Fort Worth. His practice focuses primarily on construction law matters. He can be reached by phone at 817.336.2400 or by email email@example.com.
Sometimes our clients are the smartest people we know!
Note from Kelly:
A client wrote this blog after her divorce was final, with the benefit of hindsight and (probably) the anxiety of my final bill. This client was one of the most organized clients I have had. She also listened well, especially when I told her things that were difficult to hear. This client is NOT an attorney and the below information is not legal advice.
“Choosing to end a 19 year marriage, or any marriage, is not an easy decision. As Dr. Phil says “you have to earn your way out of the relationship.” Once you have decided that it is the right decision for your life, there are steps you can take to make this excruciating experience a little less painful. First and foremost, make sure you have a good therapist to walk you through the emotional process of divorce. The attorney you decide upon is NOT…
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