Not all Power of Attorneys are created the same. In general terms, a Power of Attorney (POA) enables a person to perform certain tasks or actions for another when they cannot be present. A POA is a legal document where a person (the “principal”) confers to another person (the “agent”) some authority to act on the principal’s behalf. A Durable Power of Attorney (unlike a general POA) continues to be effective even after the principal becomes incapacitated or disabled.

Durable Power of Attorney

A general POA gives authority to agent to act in a broad range of manners but the manners are usually specified in the same instrument used to create the POA. A durable POA is a general POA with the key difference that if the principal becomes mentally or physically disabled or incapacitated, then it continues to be in effect.

Section 751.0021 of the Texas Estates Code lays the uncomplicated yet comprehensive framework for a valid durable power of attorney, and our firm can ensure your Durable Power of Attorney holds up in court and only grants the agent the powers you specify.

  1. The statute provides that the instrument must be in writing or other record that designates one as an agent and grants authority to that agent to act on behalf of the principal. Use of the term “power of attorney” is NOT dispositive in satisfying this element.
  2. The provision on signature(s) shall be satisfied when the instrument is signed by an adult principal or in the adult principal’s conscious presence by another adult directed by the principal to sign the principal’s name on the instrument.
  3. It is further required that the instrument contain the words (1) “this power of attorney is not affected by subsequent disability or incapacity of the principal” or (2) “this power of attorney becomes effective on the disability or incapacity of the principal” or similar words that clearly indicate authority conferred shall be exercised notwithstanding the principal’s subsequent disability or incapacity.
  4. Lastly, it is required that the instrument be acknowledged by the principal before an officer authorized under the laws of the state to take acknowledgements of deeds of conveyance and administer oaths.

Financial institutions are required to accept Durable Power of Attorneys unless they provide enumerated grounds for refusal in accordance with Section 751.201(a)(2) of the Texas Estates Code. Agents or principals may bring a cause of action against persons who refuse to accept a valid POA in violation §751.201. See §751.212.

If you or someone you know is listed as an Agent in a POA, is trying to create a valid POA, or needs help determining the validity of a POA, contact us at the Oxner Legha Law firm by calling (346) 327-9500.

For access to a Durable Power of Attorney form, go to: https://hhs.texas.gov/laws-regulations/forms/miscellaneous/sdpoa-statutory-durable-power-attorney.

Jason Oxner

About Jason Oxner

Jason is licensed in the State of Texas and is a member of the State Bar’s Health Law Section, Real Estate and Probate Section, and Business Law Section. More about Jason Oxner.

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