Texas Durable Power of Attorney Laws

A power of attorney (POA) is a legal document in which one person (the principal) grants specific authority to another person (agent or attorney-in-fact) to act on behalf of the principal. A power of attorney terminates upon the principal’s incapacity, whereas a durable power of attorney (DPOA) includes durability language. This indicates that the agent’s authority survives the principal’s incapacity. One example of durability language is: “This power of attorney is not affected by my subsequent disability or incapacity.” This language is from the Texas Statutory Durable Power of Attorney form.

Durable powers of attorney are an important part of a comprehensive estate plan. With them, you can plan for your potential incapacity by appointing an agent to manage your financial decisions or healthcare decisions while you are unable to do so yourself. Without these important legal documents in place, the probate court could end up making these important choices for you.

Estate planning can specify how our assets pass at death, but a comprehensive estate plan also addresses potential incapacity. This overview explores the Texas requirements for a valid durable power of attorney, the agent’s powers and limitations, how a durable power of attorney terminates, and options for creating one.

Texas Requirements for a Valid Durable Power of Attorney

While there is some overlap, the requirements for a valid durable power of attorney for financial matters differ from the requirements for a valid medical power of attorney. Let’s identify and examine the differences between them.

Durable Power of Attorney for Financial Matters

The statutory authority for a financial Durable Power of Attorney is in the Texas Estates Code. The statutes address:

• Capacity requirement: The principal must be competent at signing. This requirement is found in the statutory structure, the definition of incapacity, and Texas common law (court decisions).
• Signature requirement: The Durable POA must be signed either by the principal or, at the principal’s direction, in their presence. The POA will likely be denied if either of these conditions isn’t met.
• Witness requirement: No witnesses are required. However, it must be notarized.
• Notarization requirement: A notary public must acknowledge the principal’s signing. This often requires payment of a fee.
• Durability requirement: The Durable POA must include language indicating that the authority survives the principal’s later incapacity. Without this language, the agent’s authority terminates at the principal’s incapacity.
• When the agent authority becomes effective: Under Texas law, a durable power of attorney is effective upon execution unless otherwise noted. This may include an effective date in the future or upon the occurrence of a certain contingency, such as the principal’s incapacity.
• Agent requirements: Texas law broadly permits the designation of a person, or sometimes a financial institution, to act as an agent. The agent must be able to act as a fiduciary. The law permits co-agents and successor agents.
• If the principal regains capacity: In the statutory form, the agent’s authority does not automatically terminate when the principal regains capacity. The principal may revoke it at any time.

Creating a DPOA can be tricky. If you have any questions, consider speaking with a Texas estate planning attorney for legal advice.

Medical Power of Attorney

The statutory authority for a Medical Power of Attorney is in the Texas Health and Safety Code. The statutes address:

• Capacity requirement: The principal must be an adult with the capacity to make healthcare decisions at the time of signing
• Signature requirement: The principal must sign the document or direct its signing in their presence (a digital or electronic signature may also be valid)
• Witness requirement or notary requirement: The principal must either sign or direct the signing of the document in front of two qualified witnesses (heeding restrictions on who may serve as a witness), or the principal’s signature must be acknowledged by a notary public
• Durability requirement: Medical Power of Attorney is durable by purpose
• When the agent authority becomes effective: A Texas medical power of attorney becomes effective only upon the principal’s incapacity, as determined and certified by the attending physician under the Texas Health and Safety Code
• Agent requirements: Any competent adult may serve as the principal’s agent, but certain healthcare provider employees or residential care facility employees may only serve as the principal’s agent if they are related
• If the principal regains capacity: The agent’s authority is automatically suspended when the principal regains the capacity to make healthcare decisions

A Medical Power of Attorney is often paired with a living will, which is a legal document that expresses your written instructions for how you want your healthcare decisions made if you’re incapacitated.

What Are My Agent’s Powers and Limitations?

A Texas Medical Power of Attorney and a Durable Power of Attorney for Financial Matters both allow the agent to step into the principal’s shoes and act on their behalf. In each case, the agent must act within the scope of authority granted by the principal, as defined and constrained by Texas law.

Medical Power of Attorney

Under Texas law, an agent acting under a medical power of attorney may make any healthcare decision the principal could make if competent. This includes consenting to or refusing treatment and accessing medical information. This authority only exists during the principal’s incapacity. It’s subject to the principal’s known wishes (by living will or otherwise) and legal limitations. Under Texas law, an agent may not consent to:

• Voluntary inpatient mental health services
• Convulsive treatment
• Psychosurgery
• Abortion
• Neglect of the principal through the omission of care primarily intended to provide for the comfort of the principal

Texas law changes constantly. If you’re uncertain whether you can make a certain choice under an MPOA, speak with a healthcare professional or a Texas estate planning attorney.

Durable Power of Attorney for Financial Matters

An agent may act on the principal’s behalf within the scope of authority granted in the durable power of attorney. The Texas Statutory Durable Power of Attorney form lists a broad range of categories. The principal must specifically grant the agent the authority for each category:

• Real property transactions
• Tangible personal property transactions
• Stock and bond transactions
• Commodity and option transactions
• Banking and other financial institution transactions
• Business operating transactions
• Insurance and annuity transactions
• Estate, trust, and other beneficiary transactions
• Claims and litigation
• Personal and family maintenance
• Benefits from Social Security, Medicare, Medicaid, military service, or other governmental programs
• Retirement plan transactions
• Tax matters
• Digital assets and the content of an electronic communication

The statutory form includes specific language stating that it does not authorize your agent to make medical or other healthcare decisions for you.

Self-Help Options for Incapacity Planning

If you want to handle incapacity planning on your own, you have options. The state of Texas provides statutory forms for a Texas Medical Power of Attorney and for a Texas Durable Power of Attorney for Financial Matters. The FindLaw articles “What Do I Need To Know To Make a Financial Power of Attorney Myself?” and “How Do I Make a Power of Attorney Myself in Texas?” can help you get started. If the statutory forms don’t quite meet your needs, you can also consider an online document preparation service that may offer a bit more flexibility and customization.

Consult a Texas Estate Planning Attorney for Legal Advice

While statutory forms or online do-it-yourself tools work for some Texans, others prefer to consult with a Texas estate planning lawyer. An attorney can help you integrate incapacity planning into your existing estate plan or, if you’re starting from scratch, as part of a comprehensive estate plan.

Working with a Texas attorney gives you access to someone trained in the requirements specific to Texas state law. After a consultation to understand your unique needs and situation, your attorney can create either a customized incapacity plan or an entire estate plan for you.