A Guide to Understanding the Texas Durable Power of Attorney and North Carolina Durable Power of Attorney

This article explains, in plain terms, what a Durable Power of Attorney is, when it begins, when it ends, and what it allows an agent to do. It also clarifies why a Durable Power of Attorney is not a substitute for a Will, and why planning early matters. The information is based on Texas and North Carolina law.

A Durable Power of Attorney Does Not Authorize An Agent to Settle An Estate (And Other Lessons)

A man (who I’ll call “Jack”), recently called me in a bit of a panic. His fiancé (“Jill”), with whom he shared a home had received a breast cancer diagnosis.

Jill was starting chemotherapy the next day and he was concerned, not only about his her health, but also about the uncertainty of life if tragedy were to strike. What if Jill had a bad reaction to the chemotherapy and died? Would he be able to keep his home and other assets he and Jill had acquired together? Would he be able to settle her estate?

Jack and Jill did some research on the internet and decided that it was important that he have the authority to handle her affairs if she died. They also wanted to make sure that he would be able to keep the home they had purchased together, as well as other property Jill wanted him to have.

So he contacted me and asked me to prepare a durable power of attorney. “That’s all we would need, right?” he asked. The short answer is “no.”

What a Durable Power of Attorney Is

A Durable Power of Attorney, a document that the person signing it, called the “principal”, choose a trusted person, your agent, to manage your financial and property affairs if you cannot.

The word “durable” means the authority continues even if you later become incapacitated. Without this document, it would be necessary for a court to appoint a guardian to pay bills, manage accounts, or deal with property. Guardianships are public, time-consuming, and expensive. A well drafted power of attorney can eliminate the need for a guardian.

When Does it Take Effect

It is necessary to sign both a Texas Durable Power of Attorney and a North Carolina Power of Attorney before a notary for it to be effective. Some take effect immediately when signed. This approach is simple and avoids delays in an emergency. You do not give up control. You can continue to handle your own affairs, but your agent has the authority to help when needed without having to jump through any hoops.

Others “spring” into effect upon incapacity. The document should define how incapacity will be determined, for example, by a written statement from a physician. A springing DPOA can feel more comfortable if you prefer that your agent not act until necessary, but it can also cause delays while financial institutions gather proof that the principal actually lacks capacity.

When Does It Expire

A Durable Power of Attorney expires at the principal’s death. After the principal dies, the executor named in the Will manages the probate process. A DPOA can also end if you revoke it, if a court appoints a guardian, or if the agent resigns and no successor is available. 

What a Durable Power of Attorney Authorizes

A Texas Durable Power of Attorney and a North Carolina Power of Attorney grant only the powers named in the document. Typical authority includes banking and bill paying, managing investment accounts, filing taxes, and dealing with real estate. It is need to record the document in the county where the property is located before a sale or refinance.

An agent is a fiduciary. That means the agent must act in your best interest, keep good records, avoid conflicts, and follow your instructions. Some powers are not automatically included in the statutory form. You must specifically give them to your agent. These powers include making substantial gifts, changing beneficiary designations, or creating or amending trusts. If you want your agent to have any of these powers, the document must say so.

It does not authorize your agent to make medical decisions. Those decisions are made under a separate Medical Power of Attorney in Texas or a Health Care Power of Attorney in North Carolina, often used with an Advance Directive.

Why a Durable Power of Attorney Is Not Enough by Itself

Jack and Jill believed a power of attorney would allow Jack to settle Jill’s affairs and keep their home if she died. It would not. It ends at death and does not control who inherits. Only a Will controls the disposition of probate assets at death. Non-probate assets, such as life insurance and most retirement accounts, pass by beneficiary designation, not by Will.

The Importance of Seeking Legal Advice

The phone call illustrated the importance of seeking legal advice for estate planning matters.

Had this couple decided to forgo contacting an attorney, they would have probably prepared a durable power of attorney using do-it-yourself document preparation service, believing that it would have been sufficient to accomplish their goals.

Despite their research, they did not understand that the power of attorney expired at death or that it would not control the disposition of his Jill’s assets upon her death. Only a will can do that.

Without a will, Jill’s assets would pass through the state’s intestacy statutes. Since the couple was not yet married, Jack would have no inheritance rights to any of Jill’s property. For more information about how the assets of a single person are distributed, read about the Texas intestacy statutes.

Don’t Procrastinate

The phone call also illustrated the importance of engaging in estate planning early.

I wrote an article last year about Rob Jaffe, a man who was unexpectedly diagnosed with primary amyloidosis, a rare blood disease that took his life in just 46 days.

Fortunately, two years before his diagnosis and death, Rob visited an attorney to have an estate plan made. This allowed him to focus on himself and his family at the end of his life, rather than worrying about whether his legal affairs were in order. He asked his brother to tell his story to impress on others:

how big a blessing it is to know — when their time comes — that they have everything in order, that they don’t need to stress or worry about how things they worked their whole life for are going to turn out . . . I would not want to waste a minute of my life now having to do estate planning or worrying that I live long enough to get documents filed or whatever garbage comes with it.

Tragedy and illness can happen to any of us at any time, so it is important that we be prepared. Had Jack and Jill planned early rather than waiting until an unexpected illness, they would have been able to focus on her treatment and recovery, rather than worrying about legal and financial matters while dealing with the stress of Jill’s diagnosis.

This article was written on June 27, 2011, and updated on November 2, 2025.