A Durable Power of Attorney in Texas is a document that provides a particular designated individual(s) known as attorney-in-fact or agent with authority to act on behalf of another person (grantor or principal) if they become unable to make decisions on their behalf.
In Texas, a power of attorney is known as “durable” because it remains in full force and effect even if the grantor becomes incapacitated. In a Texas durable power of attorney, an attorney-in-fact performs specific actions on the grantor’s behalf, such as signing contracts or handling financial transactions. The agent ought to be a trustworthy individual such as a spouse, sibling, family member, or close friend. The grantor may name several individuals as attorneys-in-fact, depending upon the circumstances. For example, a beneficiary person may not serve as an attorney-in-fact.
The implementation of a durable power of attorney in Texas is governed by TX Est Code, Title 2, Subtitle P (Durable Powers of Attorney), and to be deemed durable and enforceable as such, it must satisfy the requirements stipulated under Section 751.0021(a) – signing requirements – or is defined by Section 751.0021(b) of (TX Est Code § 751.002(4)). The statutory form for this type of POA can be obtained from TX Est Code § 752.051. There are three versions of a durable power of attorney in Texas: the standard version, the Texas.gov version, and the Texas.edu version. A non-durable POA Texas must be signed by the principal and should be notarized. The document’s validity ends upon the demise of the grantor/principal or revocation by the same.
A durable POA Texas differs from a non-durable POA. It remains effective and enforceable even if the grantor becomes incapacitated and cannot communicate their decisions on the duties and responsibilities stipulated in the durable POA. On the other hand, a POA that is not durable becomes null and void once the principal/grantor becomes incapacitated.
To further expound on how a durable power of attorney is executed in Texas, this article will discuss how to fill the document appropriately and the requirements it must met to be enforceable within the state.
Texas DPOA Requirements
Specific state requirements have to be met for a power of attorney in Texas to be considered “durable” and legally enforceable within the state. Firstly, it must contain either of the following statements or similar wording; “This power of attorney (POA) is not affected by subsequent disability or incapacity of the principal” or “This power of attorney (POA) shall become effective on the disability or incapacity of the principal.”
The grantor must sign the POA in front of a notary public to be valid. However, it does not need witnesses.
How to Fill Texas DPOA?
Ensuring that Texas’s durable power of attorney is appropriately completed can go a long way in protecting both the grantor and the attorney-in-fact.
The steps below can be followed when creating a durable power of attorney in Texas:
Designate an agent
The first step is choosing a suitable agent. While choosing an agent, the grantor should consider their circumstances and choose an agent who will act in their best interest. The grantor may choose a family member, friend, or an attorney to act as their agent. It is best to choose an agent whose capabilities align with the purpose of the Texas durable POA. For example, selecting a real estate agent would be more befitting if a power of attorney regards real estate management.
Complete the declaration statement
Secondly, a declaration statement should be provided. This statement will outline the purpose/intention of the POA, the name of the grantor and agent, and other identification details. It must also identify who is the appointing authority and who is appointed. The declaration statement may also include reference to applicable laws, possible disability, or incapacity of the principal.
The second step is specifying the powers and duties of the attorney-in-fact. The authority can be general or limited. The authority should be explicitly declared, not implied, to avoid confusion. The duties and responsibilities can be presented in a list. The statutory form will typically list the general functions commonly designated to agents; the principal is expected to initialize/select those they wish to designate to the agent.
Define how the principal power will be used
The following section should also declare the legal authority granted to the agent by the principal. These can range from a wide variety of functions such as signing documents, depositing checks, filing taxes, etc. The Texas durable power of attorney lists general functions an agent can perform on behalf of the principal, and the areas can be highlighted when the POA is being completed. Principal can designate all or specific functions to the agent depending on their preference.
The principal’s obligation is to compensate the agent and reimbursement for expenses incurred while the agent performs their assigned duties. Three options are typically available in this regard. First, the principal can decide to compensate the agent for their services and not cover any expenses incurred.
Alternatively, they can choose to cover the expenses incurred, such as attorney’s fees, administrative fees, etc., without compensating the agent for being an agent. Thirdly, they can decide to compensate and reimburse the agent. Failure to clarify this provision automatically implies that the agent is entitled to compensation and reimbursement.
How the powers will start
Next, the Texas durable power of attorney should clarify how the powers of the document will be executed from the beginning, termination, and how incapacitation will affect the powers. Principals can choose to have the validity of the POA begin immediately or after incapacitation. Applicable termination terms should also be declared.
It must clearly state that it is terminated either if the powers have been revoked, when the principal dies, or when the agent cannot perform their assigned duties. In this section, successor agents can be named. Successor agents assume the obligations of the primary agent should they be unable to perform their assigned duties due to incompetency or unavailability. Each agent should be identified by providing their name and contact information.
Ensure the form is durable
The principal should then determine whether a power of attorney in Texas is legally enforceable as a durable POA. This can be determined by ensuring if it satisfies the requirements stipulated under Texas Estates Code § 751.0021. This will often require that specific language and wording should be used. Note that any power of attorney initiated in another state and deemed durable within the original state is considered equally enforceable in Texas.
Sign and date the form
After it has been ascertained that the document complies with all the durable power of attorney provisions in Texas, the principal or grantor should sign the POA in front of a notary public. The date of signing must also be specified. The notary public should provide an official acknowledgment and seal.
Additional information for the agent
Lastly, the principal can input additional information they wish to relay to the agent, such as expectations. For example, the principal can reiterate that the agent shouldn’t act outside the legal authority of the POA and should act in the grantor’s best interests.
Free DPOA Forms
Following are the free DPOA forms:
Storage and Usage of the DPOA Form in Texas
Once a Texas power of attorney is completed, copies of the document should be issued to the agent and other third parties that the agent is expected to interact with while performing their duties.
The principal should retain the original copy and store it securely. Other aspects to take into consideration include:
Signing on behalf of the principal
Principals should sign their durable power of attorney forms. This is due to the sensitivity and legality of a POA. Therefore, the principal should not designate this authority to sign a POA into effect to another person.
Revoking a DPOA
Revocation of powers of attorney forms is expected due to different reasons such as incompetency, divorce, preference, abuse of powers, etc. The proper procedure to go about this is by filing a revocation of power of attorney form. However, the principal cannot revoke a POA while they are incapacitated or unable to make rational decisions as established by a registered physician. The state of Texas allows principals to revoke previous POAs by creating new POAs and explicitly stating that all previous powers of attorney in Texas are revoked.
Durable power of attorney in Texas are used as insurance for principals who want their business and personal affairs to proceed smoothly even if they become incapacitated. The document is legally enforceable. Thus, it should be created by a person familiar with the proper legal procedure, such as a lawyer who is conversant with the state requirements of Texas and federal laws. A durable power of attorney in Texas can be created by filling in a document or prepare it from scratch, typically taking more prolonged and more effort, especially in ensuring the correct language is used to ensure it is legally enforceable within Texas.
The document should also be reviewed, revised, and updated periodically, especially in case of any changes in the principal’s circumstances. Finally, the revocation process should be formalized, preferably through a revocation of power of attorney form.