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.