The Texas durable power of attorney (durable POA) is a legal document one party, called the principal, uses to authorize another party, called the agent or the attorney-in-fact, to represent them before governmental, financial, medical, or other institutions and third parties.
Unlike other types of powers of attorney, a durable power of attorney remains effective even if the principal becomes incapacitated.
You should use the Texas durable power of attorney in every situation where you are not able to represent your interests personally. This can happen due to a physical or mental disability, like dementia or Alzheimer’s disease, or simply because the principal is located far from the place where a certain action must be taken.
Durable Power of Attorney Laws & Requirements in Texas
Laws & Requirements
Signing requirements: The principal or another adult in the principal’s conscious presence must sign the durable power of attorney before the notary public. (§ 751.0021)
Statutory form: The durable power of attorney form is provided in § 752.051.
“Durable” legal definition: TX Est Code § 751.002(4) provides that “Durable power of attorney” means a writing or other record that complies with the requirements of Section 751.0021(a) or is described by Section 751.0021(b).
How to Fill out a Durable Power of Attorney in Texas
#1. Designate an Agent
Firstly, you should name a person who will act on your behalf and represent your interests. The agent must be an adult with legal capacity. Moreover, it should be someone you trust, especially if they have the authority to make decisions regarding your finances or health care.
Here, you can also name the successor agent. They will have the authority to act in case the primary agent loses legal capacity or is otherwise unable to represent you.
#2. Grant Authority
Once you have determined the agent, you should define their scope of authority.
The Texas durable power of attorney provides three ways in which you can determine your agent’s scope of authority:
Scope of Authority
General authority. This option enables the agent to take all the necessary actions and represent you before all third parties. This means that the agent will have the same scope of authority as the principal issuing the durable power of attorney.
Partial authority. Here, you can select the activities you want to include in your agent’s scope of authority from the list provided in the Texas durable power of attorney form.
Special authority. This option gives you the most flexibility since you can describe the scope of authority in your own words. This means that you can include the activities that are not provided in the durable power of attorney form.
#3. Ensure the Form is Durable
In Texas, the power of attorney is not durable by default. This means that you must include the special wording provided in Texas Estates Code § 751.0021 to make your power of attorney durable.
#4. Sign the Form
The principal, or another person in their conscious presence and under their guidance, must sign the Texas durable power of attorney.
#5. Notarize the Form
In Texas, the durable power of attorney must be notarized. The notary public will confirm the authenticity of the principal’s signature and the overall authenticity of the document and prevent any future disputes in that regard.
#6. Store Your Durable Power of Attorney Form
After drafting and signing the durable power of attorney, you should keep it in your possession and store it in a safe place.
You can give one copy to the agent so they can prove their capacity before any third party they are interacting with on your behalf.
How to Revoke a Durable Power of Attorney in Texas
You can revoke the Texas durable power of attorney by issuing a verbal or written revocation, destroying the document with the intention of revoking it or issuing another power of attorney that will revoke the previous one.
However, the best way to revoke the Texas durable power of attorney is to issue a revocation letter. This letter should include all the information that will help the parties individualize the power of attorney that is being revoked, like the agent’s name or the power of attorney issuing date.
To make the revocation effective, you should provide one copy of the revocation letter to the agent and to every third party they are interacting with on your behalf.