Incapacity

Financial Powers of Attorney

What is a Durable Power of Attorney?

by Rania Combs

A durable power of attorney is a written document that creates an agency relationship between a principal, the person granting authority, and an agent or attorney-in-fact, the person to whom authority is granted.

By signing a durable power of attorney, the principal authorizes another person to engage in specified business, financial and legal transactions on his or her behalf. It is called “durable” because it does not terminate if the principal 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
  • signed by an adult
  • name an agent or attorney in fact
  • expressly provide that the agents authority either continues after the principal becomes disabled, or begins when the agent becomes disabled or incapacitated
  • be acknowledged

The durable power of attorney does not need to be signed by any witnesses. It is not necessary to file the durable power of attorney unless the agent uses it with respect to a real property transaction.

When does a durable power of attorney take effect?

A durable power of attorney can take effect at the time it is executed, or can “spring” into effect when the principal becomes disabled or incapacitated, or when another specified event occurs.

In the case of a springing durable power of attorney, the principal may define the disability that would trigger the durable power of attorney to take effect. If the disability is not defined, then the principal is considered disabled if 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.

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 the document creating the power of attorney specifically states a time limit.

Because your agent will have broad authority, it is important that you select someone you trust implicitly to act in your best interest.

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Comments

  1. 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?

    1. 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.

  2. 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?

    1. 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.

  3. 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

    1. 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.

  4. 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?

    1. 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.

  5. 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

    1. 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.

  6. 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.

    1. Rania Combs

      October 24, 2013 at 10:00pm

      Yes. A durable power of attorney expires when the principal dies.

  7. Sari

    June 24, 2013 at 11:31am

    Can you give Power of Attorney to two people?

    1. Rania Combs

      October 24, 2013 at 10:00pm

      Yes.

  8. 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?

    1. 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.

  9. 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?

    1. 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..

  10. 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?

    1. 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.

  11. 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?

    1. 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.

  12. Mary

    November 6, 2016 at 8:44am

    Can the same person serve as a medical power of attorney and a durable power of attorney?

    1. Rania Combs

      November 30, 2016 at 4:05pm

      Yes.

  13. 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?

    1. 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.

  14. 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?

    1. 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

  15. 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…

    1. 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.

  16. 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!

    1. Rania Combs

      June 5, 2018 at 1:18pm

      Hi Dee. The following article may answer your question: Estate Planning for College Students.