What is a Durable Power of Attorney?

by Rania Combs on April 5, 2010

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 pricipal 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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{ 18 comments… read them below or add one }

Betty Guerre December 13, 2011 at 6:29 pm

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?

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Rania Combs December 14, 2011 at 11:42 am

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.

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Tammy April 4, 2012 at 5:51 am

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?

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Rania Combs April 4, 2012 at 8:15 am

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.

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Vonnie October 5, 2012 at 8:57 pm

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

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Rania Combs January 2, 2013 at 5:26 pm

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.

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Joe October 15, 2012 at 10:59 am

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?

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Rania Combs October 24, 2013 at 10:05 pm

It will be necessary to sign both a Medical Power of Attorney and a Durable Power of attorney.

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Denisa December 26, 2012 at 7:13 pm

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

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Rania Combs January 2, 2013 at 10:31 am

Unfortunately, your father will not be able to sign a new power of attorney during his incapacity.

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lisa June 10, 2013 at 11:43 am

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.

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Rania Combs October 24, 2013 at 10:00 pm

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

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Sari June 24, 2013 at 11:31 am

Can you give Power of Attorney to two people?

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Rania Combs October 24, 2013 at 10:00 pm

Yes.

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Barb October 24, 2013 at 9:46 pm

Can the Texas General Durable Power of Attorney name two attorneys in fact each of which may independently exercise the powers granted?

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Rania Combs October 24, 2013 at 9:50 pm

Yes. It is possible to name two attorneys in fact and specify that each agent may act independently.

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Ray S December 11, 2013 at 4:34 pm

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?

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Rania Combs December 11, 2013 at 5:27 pm

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..

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