Here, learn about Texas' different types of powers of attorney, including general, limited, durable, springing, and medical powers of attorney. Understand the legal requirements for executing a power of attorney and how to appoint an agent to make decisions on your behalf. Find out how to revoke or end a power of attorney and why to have a power of attorney.
What is a Power of Attorney?
A Power of Attorney is a legal document that gives someone else the legal power to act on your behalf. The person appointed in the power of attorney document is called the agent. The person who signs a power of attorney making someone else their agent is called the principal. A person does not have to be a lawyer to be appointed an agent.
What are the types of powers of attorney?
- General power of attorney: A general power of attorney gives the agent the authority to act in a broad range of matters. A general power of attorney ends if the principal becomes mentally or physically disabled or incapacitated.
- Limited or special power of attorney: A limited or special power of attorney gives the agent the authority to handle a specific matter or for a limited period of time.
- Durable power of attorney: A durable power of attorney is a general power of attorney but continues if the principal becomes mentally or physically disabled or incapacitated.
- Springing power of attorney: A springing power of attorney gives the agent authority only if and when the principal becomes disabled or incapacitated.
- Medical power of attorney: A medical power of attorney gives the agent the authority to make medical treatment decisions for you if you come mentally or physically unable to make your own decisions.
What are the legal requirements for executing a power of attorney?
Below is a list of requirements for executing a power of attorney:
- The power of attorney must be signed before a notary public;
- You must be 18 years of age or older;
- You must be of sound mind and know what you are doing when you sign the power of attorney; and
- If you entrust your agent to conduct real estate transactions for you, the power of attorney document must be filed with the clerk of each county where the property is located.
Can my agent tell me what to do?
No. A power of attorney only allows your agent to do the things you want to be done for you. It does not limit your ability to do something for yourself.
Does the power of attorney end?
Yes. There are five instances when a power of attorney ends:
- It has an ending date;
- When you become incapacitated, if the power of attorney is not a durable one;
- When you revoke it;
- When a guardian of the estate is appointed for you; or
- When you die.
What is a durable power of attorney?
A durable power of attorney does not end if you are incapacitated. A durable power of attorney and a general durable power of attorney are the same thing; the key word is durable. A durable power of attorney can be used for business and financial decisions. There are specific requirements:
- It must be in writing,
- It must name the person that you want to be your agent,
- It must be signed and notarized, and
- It must say how the power of attorney is to be used.
Examples of how you want the power of attorney used:
- Suppose you want a financial durable power of attorney to continue even if you become disabled. In that case, it must say: “This power of attorney is not affected by subsequent disability or incapacity of the principal.”
- If you want a financial durable power of attorney to start if you become disabled, it should say: “This power of attorney becomes effective on the disability or incapacity of the principal.”
Are there advantages of a general durable power of attorney?
With a general durable power of attorney, you can say who you want to take care of everything if you cannot take care of your own affairs. If you have a durable power of attorney, the court may not have to name a guardian for you if you become incapacitated. Be warned, however, that no law requires a third party to accept a power of attorney.
What happens if I have a durable power of attorney and the court appoints a guardian?
Your general durable power of attorney ends if the court names a guardian of your estate. Your general durable power of attorney may be suspended if the court designates a temporary guardian.
Can I stop a power of attorney?
You have the right to end your power of attorney any time. This is called revoking a power of attorney. If the power of attorney is for a specific amount of time, it will end automatically. You must tell your agent that you are revoking the power of attorney. You must also tell the people working with the agent that you revoked the power of attorney. It is best to prepare a sworn written statement of your revocation. You must have the mental ability to revoke a power of attorney. That is, you must be able to understand what you are doing.
There are forms for revoking a power of attorney.
What is a statutory durable power of attorney?
The standard form durable power of attorney in Texas can be found in the Texas Estates Code. This form gives your agent very broad powers to act in your name. Use it carefully and with caution. Before signing a statutory durable power of attorney, you should ask a lawyer to help you understand the powers you give to the person you have selected.
Who should I choose to be my agent?
A person you would trust with your life. Choose this person very carefully. That person can act in your name, as if you were there. In most cases, you are responsible for anything your agent does in your name. Choose someone who is honest and trustworthy. This is especially important if you are signing a general durable power of attorney. Because of the powers that you give to another person, it is highly recommended that you talk to a lawyer before signing any power of attorney.
You should especially speak to a lawyer to prepare a Durable General Power of Attorney. For help finding a lawyer, use TexasLawHelp's Legal Help Directory tool.
Can I give someone power of attorney to sell my property?
Yes. This special power of attorney allows your agent to sign a deed for the property. This kind of power of attorney must include a legal description of the property you want to sell. You must record a power of attorney in the deed records of the county where the property is located. If you wish, you can add an expiration date to the power of attorney.
What if my spouse is my agent and we get divorced?
If your spouse is your agent, the power of attorney ends the day your divorce is granted. If you do not want your spouse’s power of attorney to end when you divorce, make sure to write that in the durable power of attorney. You may also execute a new one after the date of the divorce naming your ex-spouse as your agent.
Do businesses have to accept my power of attorney?
A business presented with a durable power of attorney (POA) must:
- Within ten days, accept the power of attorney or reject the POA and provide a written explanation of the reason for the rejection;
- Within ten days, request that the agent sign a certificate;
- Within ten days, request that the agent provide an opinion of counsel; or
- Within five days, request an English translation if the power of attorney is in another language.
If a certificate or opinion is requested, the POA must be accepted or rejected within 7 business days after receipt of the requested document.
There are 11 statutory reasons a third party can reject a power of attorney. The following are some of the reasons a third party can reject a power of attorney:
- The third party has a good-faith belief or knowledge that the POA is no longer valid,
- The agent is exceeding his or her scope of authority,
- Elder financial abuse is suspected
- The principal or agent is suspected of criminal activity,
- The transaction would violate Texas or federal law, regulation, or ordinance, or
- There is more than one agent, and the third party is receiving conflicting directions.
For a complete list of the statutory reasons a third party can reject a power of attorney, see Texas Estates Code 751.206 Grounds for Refusing Acceptance. If you believe your power of attorney is being wrongly denied, talk to a lawyer about your legal options.
For more information…
Call the Legal Hotline for Texans, which is an attorney-staffed legal hotline, 800-622-2520 or 512-477-3950. Advice is free for Texans 60 and over or for anyone receiving Medicare.
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DBA-102-Directive to Physicians - Living Will
DBA-103-HIPAA Authorization for Release of Protected Health Information
DBA-104-Statutory Durable Power of Attorney
DBA-105-Designation of Guardian in Event of Later Incapacity or Need of Guardian
DBA-106-Declaration of Guardian for Minor Form