Can An Incapacitated Person Make or Revoke a Durable Power of Attorney?
Generally, you can amend your durable power of attorney by signing a new durable power of attorney. You also have the right to revoke or terminate your durable power of attorney. But is it possible to make a durable power of attorney or revoke one you have previously signed after you have become incapacitated?
What is a Durable Power of Attorney?
A Texas durable power of attorney is an important document. It authorizes another person to handle financial affairs on your behalf.
What Happens if You Don’t Have a Power of Attorney?
If you don’t have a durable power of attorney and become incapacitated, guardianship may be necessary. Guardianships are expensive and cumbersome and can be avoided with a durable power of attorney.
Is Capacity Necessary to Make or Revoke Durable Power of Attorney?
This is a question people often ask because the durable power of attorney statute does not specifically address it.
Specifically, the statute defines a “principal” as an adult person who signs or directs the signing of a durable power of attorney. The statute does not mention a competency requirement; however, courts that have examined this issue hold that the mental capacity required to sign a durable power of attorney in Texas is contractual capacity. Contractual capacity requires that the principal understand the nature or consequences of his act and the business he is transacting at the moment he signs the power of attorney.
The same is true with regards to revocation. Although the medical power of attorney statute specifically states that the principal can revoke a medical power of attorney without regard to his or her competency or mental state, the durable power of attorney statute is silent on this point.
I recently exchanged emails about this issue with Gerry Beyer, a professor at Texas Tech School of law, who opined that the same level of competency required for making a durable power of attorney is necessary to revoke one.
Therefore, if you become incapacitated, your durable power of attorney will endure until your incapacity is lifted. However, it will not be possible for you to make, amend, or revoke your power of attorney during your incapacity.
This article was originally published on January 8, 2018, and updated on October 5, 2023.
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Comments
Revoking a Durable Power of Attorney — Texas Wills and Trusts Online
March 7, 2013 at 9:51am
[…] Can An Incapacitated Person Revoke a Durable Power of Attorney? […]
Weldon Copeland
March 31, 2017 at 5:22pm
A durable power of attorney unquestionably remains valid after the original maker of the power of attorney becomes incapacitated.
But there is some question about whether an incapacitated person can revoke the durable power of attorney even after they become incapacitated. Do you have a case citation standing for the proposition that the maker of a durable power of attorney cannot revoke the power of attorney once they become incapacitated?
Note that a medical power of attorney can be revoked by an incompetent person ever after the incompetent person becomes incompetent. TX HEALTH & SAFETY § 166.155.
Rania Combs
April 6, 2017 at 11:05am
I have communicated with Professor Gerry Beyer about this issue and while it is not spelled out in the statute, it is his opinion that the principal must have capacity to revoke. Otherwise, no one could rely on a durable power of attorney once the principal is incompetent.
Anita Rowlett
January 24, 2019 at 2:05pm
My brother is incapacitated. My nephew and sister had him sign MPOA and POA as well as ‘guardianship in case of future incapacity’ to them, knowing he was an incapacitated person. They euthanized my mother in order to get his estate which they now posses. Isn’t that a criminal act?
Rania Combs
January 28, 2019 at 8:59pm
If you suspect an elderly person or disabled person is being victimized, you should call the Department of Family and Protective Services (DFPS) hotline at 1-800-252-5400 to report the abuse. DPFS will gather information to determine whether the reported conduct meets the legal definition of abuse, neglect, or exploitation.
Valencia ng
July 14, 2020 at 9:21pm
Hello, my mom signed a durable POA in Texas while she is a resident in another state. She is not incapacitated. Can she revoke the POA?
Rania Combs
July 17, 2020 at 4:02pm
Yes.