How to Get a Durable Power of Attorney in Texas

A durable power of attorney (DPOA) is a powerful estate planning tool that helps you maintain control over your legal and financial affairs, even if you get into an accident or face an illness that leaves you debilitated. A durable power of attorney terminates upon your death and, therefore, doesn't replace a living will. Texas, like every state, has specific requirements for how to draft and file this important legal document. 

What is a durable power of attorney?

A power of attorney (POA) is a legal document that allows you to grant an individual—called an agent or attorney-in-fact—the authority to handle legal and financial matters on your—the principal's—behalf. A POA is different from a healthcare power of attorney—or advance healthcare directive—that determines an agent's authority over healthcare decisions.

A durable power of attorney is a POA that becomes effective due to or remains effective despite the principal's disability or incapacitation.

According to Estates Code, Title 2, Texas law considers an individual disabled or incapacitated if a physician conducts a medical examination and certifies in writing that the individual is mentally incapable of managing their financial affairs. This examination must take place after the principal has already created the DPOA.

Types of power of attorney

Excluding an advance healthcare directive—which governs healthcare decisions—there are four main types of powers of attorney in Texas. Each type modifies the powers granted to the agent or attorney-in-fact.

• General power of attorney: Grants broad powers but terminates upon the principal's disability or incapacity. An employer might use this POA to grant an employee the authority to make business deals on their behalf.
• Limited (special) power of attorney: Grants specific powers for a limited purpose or time. Texas residents often use this POA to transfer car titles or to allow an accountant or attorney access to public records for tax matters.
• Durable power of attorney: Remains effective even if the principal becomes incapacitated. A DPOA allows you to dictate what happens to your assets in the event of an illness or sudden incapacity rather than leaving those decisions up to court.
• Springing power of attorney: Becomes effective upon a specified event, typically the principal's incapacitation. This is different from a durable power of attorney that you can choose to make effective immediately or upon incapacitation.

Requirements for a durable POA in Texas

Texas Estates Code outlines certain requirements that your document and participants must meet for your DPOA to be legally valid.

• Principal eligibility: The principal must be an adult (18 years or older) and of sound mind.
• Agent eligibility: The agent must be a competent adult. Additionally, agents authorized to conduct more than three real estate transactions annually must obtain a real estate license from the Texas Real Estate Commission.
• Specific powers: In the DPOA, the principal must explicitly state an agent's authority to hold certain powers—such as making gifts or changing beneficiary designations—for the agent to legally perform those duties.
• Effective clause: The document itself must state whether the DPOA will be immediately effective or only effective upon the subsequent disability or incapacity of the principal.
• Execution: The adult principal—or another individual in the adult principal's conscious presence—must sign and acknowledge the DPOA before a notary public.
• Recording the deed: You must file DPOAs that authorize real estate transactions with the clerk of each county in which you own real estate. 

How to create a Texas durable power of attorney

A durable power of attorney is an important legal document that authorizes someone to act on your behalf despite incapacitation. For that reason, it's wise to execute the process with the help of an experienced estate planning attorney.

1. Determine the powers to grant

A power of attorney must expressly state an agent's powers. Consider which financial and legal decisions you'd like your agent to make on your behalf. For example, would you benefit from authorizing an agent to conduct real estate transactions, stock and bond transactions, business operating transactions, or make personal and family maintenance decisions on your behalf?

2. Select a trusted agent

A DPOA gives your agent the same power of authority to make certain decisions on your behalf that you yourself hold. For that reason, it's vital to choose someone reliable and capable. Appoint an agent whom you not only trust but who can effectively collaborate with legal and financial institutions.

3. Draft the document

There are two basic routes that you can take to draft a durable power of attorney form. The first is to use the statutory durable power of attorney form that Texas provides on its government website. The second route is to consult an attorney to draft a customized DPOA.

In either case, you can feel confident that the document complies with Texas law. However, a customized DPOA gives you more freedom to tailor the powers granted to align with your individual needs.

4. Include necessary language

While using a statutory durable power form or one drafted by an experienced attorney should guarantee that the document includes all the necessary language, it's prudent to double-check. Comb through the document to confirm that it expressly states when the power of attorney will go into effect and that it will remain in effect despite the principal's incapacity.

5. Sign and notarize

Texas law requires you to sign your DPOA in the presence of a notary public. Once signed, file it with the relevant county clerks. Make sure to also keep personal copies in a safe space that you and your agent can access. 

How and when to revoke a durable power of attorney

Although many people may believe a durable power of attorney grants unlimited and indefinite powers, there are quite a few scenarios that would allow you to revoke the DPOA or in which it would terminate automatically.

For example, the DPOA would automatically terminate under the following circumstances: 

• Your death 
• If your agent is your spouse and you divorce
• If an event occurs that your DPOA expressly states would lead to the termination of all durable powers.

You can also revoke a durable power of attorney by tearing the original document and creating a notice of revocation of power of attorney document. Once you've created the revocation document, sign it in the presence of a notary public and file it with your county clerk. Note that you must inform your agent when revoking a power of attorney. 

FAQs

What is the difference between a regular power of attorney and a durable power of attorney?

The essential difference between a regular power of attorney and a durable one is that a durable power of attorney remains in effect despite the principal's disability or incapacitation. In some cases a durable power of attorney may not go into effect unless the principal is disabled or incapacitated.

When does a durable power of attorney take effect in Texas?

That's up to you. You decide when your durable power of attorney will take effect by expressly stating it in the document. You can choose for it to take effect either immediately or in the event that you're incapacitated.

Can I have more than one agent in a durable power of attorney in TX?

Yes, you can appoint a co-agent, successor agent, and successor co-agent in your Texas durable power of attorney.

How do I choose an agent for my durable POA?

One of the first things to consider when choosing your agent is what you want your POA to accomplish. Once you understand that, you should choose an agent who you trust to reliably fulfill the duties you've granted them.

For example, if the agent will be managing your financial affairs, it's wise to choose someone with relevant financial experience. If you're appointing someone to conduct real estate transactions on your behalf, you may choose someone who already has a Texas license and background in real estate.