Dear Mr. Premack: My father is 86 and has become a terrible, frightening driver. I won’t get in a car with him and have told my mother that she’s taking her life in her own hands if she lets him drive. But she has always deferred to him and just doesn’t have it in her heart to make him stop driving. When I tell him that he is going to get into an accident, he gets angry and tells me that driving is his legal right. What steps can I take to get him to stop driving? Can I be sued as negligent as the agent under his Durable Power of Attorney if he kills someone? – H.W.
Begin with social and practical steps where you can take action. Emphasize that safety overrides convenience. Remind him he already knows that if he causes an accident he could injure or kill himself, or your mother, other motorists or even some child who runs into the street. If convenience is important to him, also remind him there are convenient alternative transportation solutions. For instance, AACOG runs Alamo Regional Transit for eleven rural counties surrounding Bexar, which can transport seniors 60+ to medical appointments or other activities. The City of San Antonio offers transportation services for 60+ seniors as well. Taxis, buses and private services also exist.
If he insists he is a safe enough driver, you could insist he prove that assertion by taking a defensive driving course. He might show you that he is a better driver than you think, or may get third party pressure to stop driving due to his dangerous behaviors. The course may also challenge him in driving conditions he avoids – for instance, they may insist that he be tested on the expressway when his comfort zone is driving to the grocery store.
Next steps you may want to cover with him would be legal and financial topics where you emphasize protection of assets. It is much cheaper to stop owning and paying for a car, and to use that saved money to pay for other driving services than to realize if he causes an accident, he could be sued and could lose all of his hard-earned life savings. The next step would be to talk about the cost of insurance. Ask his insurance agent how expensive it may be to buy coverage for all the possible damages he could cause. Your father should have insurance beyond the legally required minimum amounts. The extra coverage could be expensive because he is a high risk driver.
Another step: you can make a written report to the Driver Improvement and Compliance Bureau of the Texas Department of Public Safety. Their staff will investigate, and if the DPS concludes he is unable to “exercise reasonable and ordinary care” while driving because of physical or mental disability, his driver’s license can be revoked. If you are reticent about reporting your own father, ask his primary care physician to make a report. A more aggressive legal step is seeking to become his court appointed guardian. If he is under a guardianship, and the court so rules he is incapacitated, his driver license will be revoked.
Your father is subject to driver license review under the Texas law named “Katie’s law,” which says that all drivers 79+ must renew their license in person and must pass prescribed fitness tests. Anyone 85+ must renew their license every two years. At 86, your father will need to appear next year and pass any tests the DPS requires of him or they will refuse to renew his license.
You also ask if you can be sued because due to your status as agent in his Durable Power of Attorney. If you are negligent by act or omission, and that negligence is a proximate cause of damage to another person, you are liable. Generally being listed as agent does not create that exposure, but other things you do (or fail to do) could possibly result in legal liability.
Dear Mr. Premack: My grandmother and grandfather bought a rental house in 1936 in Austin. They had only one child, my mother, and no other children by other marriages. In 1943 my grandfather died intestate. Did my mother inherit all her father’s half of the property, or did she inherit one half of her father’s one half? – H.S.C.
The Texas laws of intestacy which applied before 1992 (hence applied in 1943 when your grandfather died) left any community property interest of the decedent to the children of that marriage. The surviving spouse kept only the half interest in the community property which that spouse already owned. Hence, your mother got her father’s entire half, not just half of his half. Your grandmother kept only the half she already owned, and got no part of her husband’s half. If your grandmother is alive, she should make a will and support documents to clarify her wishes. If she has passed away, her estate should be probated to pass ownership of the house and her property to maintain a clear title.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2012) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, November 12, 2012
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