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.

Return to Texas Wills and Trust Online home page →

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