What is a Texas Durable Power of Attorney?
A durable power of attorney is a written document that authorizes another person, known as an agent, to engage in specified business, financial and legal transactions on your behalf. It is called “durable” because it does not terminate if you become disabled or incapacitated.
What are the requirements of a durable power of attorney in Texas?
To be effective in Texas, the following the durable power of attorney must:
- be in writing
- be signed by an adult
- name an agent or attorney in fact
- expressly state that the agent’s authority either continues after the principal becomes disabled, or begins when the agent becomes disabled or incapacitated
- be notarized
It is not necessary for witnesses to sign a durable power of attorney. It is also not necessary to immediately record a durable power of attorney unless the agent uses it with respect to the purchase or sale of real estate.
When does a durable power of attorney take effect?
A durable power of attorney can take effect immediately when executed. Another option is to have it “spring” into effect when the principal becomes disabled or incapacitated.
In the case of a springing durable power of attorney, the principal can define the disability that would trigger the durable power of attorney to take effect. If the power of attorney does not define the disability, then it will take effect after a physician certifies in writing that the principal is incapable of managing his or her financial affairs. This can sometimes cause delays in allowing your agent or attorney-in-fact to act for your benefit.
Who Can Be My Agent?
Your agent can be anyone you trust implicitly to act in your best interest. It could be a family member, a friend, or even a professional fiduciary if there is no individual you can rely on.
By granting this power of attorney, you can avoid the need for a court-appointed guardian to manage your affairs if you become incapacitated. But because your agent will have significant powers, it is important to select someone who you trust implicitly to act in your best interests as your agent.
What is the duration of a durable power of attorney?
The durable power of attorney does not lapse because of the passage of time unless it specifically states a time limit. However, a power of attorney will expire when you die. After your death, your agent will not longer have the power to act on your behalf.
Can I Write My Own Power of Attorney in Texas?
Texas Health and Human Services has a free durable power of attorney form which you can access by clicking on the link. Using a statutory form, if signed properly, can be a convenient and cost-effective way to create a power of attorney. However, there are limitations to using a statutory form.
Without legal advice, your power of attorney may limit the types of actions your agent can take on your behalf. For example, most online durable power of attorney forms do not give an agent sufficient power to engage in Medicaid planning. Planning for Medicaid requires broader provisions that give an agent the power to create trusts and make gifts, which many online forms do not include. Consulting with an experienced attorney can provide you with a more tailored and comprehensive document that meets your specific needs and offers greater protection.
This article was originally published on April 5, 2010 and updated on April 18, 2023.
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Comments
Betty Guerre
December 13, 2011 at 6:29pm
I have Durable and Medical Power of Attorney for my dad. If he is deemed incompetent by a physician, do I still need to go to probate court?
Rania Combs
December 14, 2011 at 11:42am
Hi Betty,
Thanks for your question. A Durable Power of Attorney was written to go into effect immediately can be used by the agent on behalf of the principal at any time without court approval. Those that go into effect upon the principal’s incapacity typically require a written certification by a physician that the principal is mentally incapable of managing his or her financial affairs.
With respect to the Medical Power of Attorney, the agent can make any health care decisions on the principal’s behalf that the principal could make if he were competent but may exercise that authority only if the principal’s attending physician certifies in writing and files the certification in the principal’s medical record that based on the attending physician’s reasonable medical judgment, the principal is incompetent. However, note that the law states that treatment may not be given or withheld from the principal if the principal objects regardless of whether at the time of the objection the principal is competent. Also, the medical power of attorney can be revoked at any time by the principal regardless of whether the principal is competent at the time of the revocation.
Tammy
April 4, 2012 at 5:51am
My dad is has been having trouble with his memory for a while and it is starting to get worse. I would like to get power of attorney for him, but not sure what types to get? Also, is it possible to put my sister’s name on the POA forms to act on behalf of my father when I am not in town?
Rania Combs
April 4, 2012 at 8:15am
A durable power of attorney will ensure that the person your dad chooses will be able to handle his financial affairs if he is unable to do so. The power of attorney can be drafted so that both you and your sister can be co-agents to handle his financial affairs, or your sister can be named as an alternate. Naturally, it would be necessary for your father to have the requisite capacity to execute a power of attorney.
Vonnie
October 5, 2012 at 8:57pm
My friend signed a power of attorney naming her husband as the agent, but she is having second thoughts because now he wants to sell her house and keep her car among other things. If she signs another one naming someone else as power of attorney, does it void the first one? Also, does a doctor have to deem her incapable of making decisions for herself or can the agent just do whatever they want to do? Any help would be appreciated. Thanks
Rania Combs
January 2, 2013 at 5:26pm
Your friend may revoke the power of attorney at any time, so long as she is competent. Whether the power of attorney is effective immediately or becomes effective during her incapacity depends upon how it is written.
Joe
October 15, 2012 at 10:59am
My sister-in-law is bi-polar and needs someone to make decisions for her both financially and medically. Can both oof those be on one durable power of attorney or does it take two separate forms?
Rania Combs
October 24, 2013 at 10:05pm
It will be necessary to sign both a Medical Power of Attorney and a Durable Power of attorney.
Denisa
December 26, 2012 at 7:13pm
My Dad is not in his right mind a lot of the time. He has cancer. The doctor signed a letter stating that he is not able to make his own decisions. So im not sure what my mom needs to do to get a durable power of attorney. He is on Hospice care now in a nursing home. can you help us Thank You
Rania Combs
January 2, 2013 at 10:31am
Unfortunately, your father will not be able to sign a new power of attorney during his incapacity.
lisa
June 10, 2013 at 11:43am
is it true that a durable power of attorney expires at the time of death? My father died and when I attempted to check on his bank account to see what drafts were being taken on the account, I was told that my durable power of attorney ceased once he died.
Rania Combs
October 24, 2013 at 10:00pm
Yes. A durable power of attorney expires when the principal dies.
Sari
June 24, 2013 at 11:31am
Can you give Power of Attorney to two people?
Rania Combs
October 24, 2013 at 10:00pm
Yes.
Barb
October 24, 2013 at 9:46pm
Can the Texas General Durable Power of Attorney name two attorneys in fact each of which may independently exercise the powers granted?
Rania Combs
October 24, 2013 at 9:50pm
Yes. It is possible to name two attorneys in fact and specify that each agent may act independently.
Ray S
December 11, 2013 at 4:34pm
If a durable power of attorney ends when the person dies, what would I need to take care of banking and real estate when at death? Does it have to be filed in the proper court?
Rania Combs
December 11, 2013 at 5:27pm
The durable power of attorney expires at death. At that point an executor or administrator would take oversee the winding up of the decedent’s affairs..
cj
April 23, 2014 at 7:14pm
My grandmother is starting to show the typical signs if dementia. She is 93. She has good days but is never all together with her thoughts. She is at the point where she keeps wanting to talk to her mother… Her mother passed in 1969. Her power of attorney states that I take over when she becomes incapacitated. What is the legal definition of incapacity? Do I need two doctors?
Rania Combs
April 25, 2014 at 9:11am
If the power of attorney springs into effect upon her incapacity, it will typically define under what conditions the principal will be considered incapacitated. For example, it may state that the principal shall be considered incapacitated for purposes of the power of attorney if one physician certifies in writing at a date later than the date the power of attorney is executed that, based on the physician’s medical examination of the principal, she is mentally incapable of managing her financial affairs.
Nancy K
August 25, 2016 at 2:17pm
If my sister had our mother sign a durable and medical power of attorney after she was diagnosed with dementia is it valid?
Rania Combs
September 1, 2016 at 10:30am
A person must have the mental capacity to understand the benefits, risks and effect of signing a durable power of attorney. Someone who is not of sound mind would lack the capacity to sign it.
Mary
November 6, 2016 at 8:44am
Can the same person serve as a medical power of attorney and a durable power of attorney?
Rania Combs
November 30, 2016 at 4:05pm
Yes.
Glen
December 9, 2016 at 10:53am
My son is 18 years old and is currently in a mental hospital not being of sound state of mind at this time. What’s required to get a power of attorney to manage his affairs?
Rania Combs
December 9, 2016 at 6:35pm
A person must be competent to sign a power of attorney. This requires he understand that he is authorizing another person to handle his financial affairs without court supervision or approval. If he doesn’t have the requisite mental capacity, he will be unable to sign the document.
Diana Jenkins
March 18, 2017 at 7:34am
If a elderly person is not in their right mind. How does a family member get a POA and what kind should they get?
Rania Combs
March 23, 2017 at 4:02pm
The following article may answer your question: Sign A Durable Power Of Attorney Before It’s Too Late
Diane Krenek
March 21, 2017 at 6:09pm
I have a Statutory Durable Power Of Attorney for my Father. Can I use this to make medical decisions for him or do I need a Medical Power of Attorney…
Rania Combs
March 23, 2017 at 4:00pm
An agent appointed in a Texas Medical Power of Attorney can make medical decisions on behalf of the principal.
Dee Ross
June 4, 2018 at 6:43pm
Hello, my son is about to turn 18. What forms do we need to take care of before he heads to college in the event something happens to him? I don’t care about checking his grades, just would like to be able to speak to doctors in the unlikely event something happens.
Thanks!
Rania Combs
June 5, 2018 at 1:18pm
Hi Dee. The following article may answer your question: Estate Planning for College Students.