Incapacity

Financial Powers of Attorney

What are the Requirements of a Valid Durable Power of Attorney in Texas

by Rania Combs

A durable power of attorney is a document that will allow you, the principal, to appoint someone you trust (an agent) to engage in specified business, financial and legal transactions on your behalf.

For purposes of the Texas Durable Power of Attorney statute, a durable power of attorney is valid if:

  1. It is a writing or other record that designates another person as agent and gives the agent authority to act in the place of the person signing the power of attorney.
  2. It is signed by an adult principal or signed by another adult  in the adult principal’s conscious presence and at his or her direction.
  3. It contains the words: “This power of attorney is not affected by subsequent disability or incapacity of the principal” or “This power of attorney becomes effective on the disability or incapacity of the principal” or words similar to those phrases that clearly indicate that the principal intends to confer authority to the agent notwithstanding the principal’s disability or incapacity; and
  4. It is signed by the principal or another adult at the principal’s direction in front of a notary.

If the law of the jurisdiction in which the document was executed provides that the authority conferred on the agent is exercisable despite the principal’s subsequent incapacity, the power is considered a durable power of attorney under Texas law – regardless of whether the term “power of attorney” is used.

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Comments

  1. Ismael Cantu

    October 4, 2018 at 8:14pm

    In Texas, does this document have to be prepared by an Attorney, or downloading a document with proper signatures suffice?

    1. Rania Combs

      October 8, 2018 at 11:51am

      Texas has statutory forms; however, the documents attorneys prepare after a consultation are typically more robust. Additionally, of all the documents I prepare for my clients, the durable power of attorney is one that elicits the most questions, besides the Will. An attorney can help explain the document to you to guide you what powers you may want to grant and why.

  2. Craig Morton

    January 27, 2019 at 3:32pm

    For Durable power of attorney in Texas does there have to be two witnesses and notary? Or can it be Notarized alone without witnesses. Or have two witnesses without notary?

    1. Rania Combs

      January 28, 2019 at 5:49pm

      It can be notarized without witnesses.

  3. Rebecca Campbell

    April 17, 2019 at 8:23am

    If the principal lives in Texas, but the agent lives in another state, does the document have to be signed and notarized in Texas, or could the Texas Financial power of attorney forms be signed and notarized in another state?

    1. Rania Combs

      April 24, 2019 at 4:06pm

      A power of attorney can be executed in another state.

  4. IMELDA Donaldson

    April 19, 2020 at 11:52pm

    Does a Texas durable power of attorney have to be signed by the agent to be valid. My daughter is my agent named on my power of attorney but lives in Oregon and has not been able to sign it. Is it still valid? Or is it only valid after she signs it?

    1. Rania Combs

      April 20, 2020 at 10:48am

      There is no requirement that the agent sign a power of attorney.

  5. Robin

    July 17, 2020 at 11:36am

    I printed out the Durable Power of Attry form for Texas. Page 3 has a place for a notary to sign. My bank says that they cannot notarize the Durable Power Of Attorney form saying that it must be signed by a court judge. But looking online at NOLO and other sites, it says I do not need to get this document notarized.
    Is this correct? This form is being used only for medical reasons.
    Thanks, Robin

    1. Rania Combs

      July 17, 2020 at 3:47pm

      It is not necessary for court judge to sign a durable power of attorney.