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 plans to use it to purchase or sell 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.
