What is a Durable Power Attorney?

In Texas, a Durable Power of Attorney (DPOA) is a formal written document that, depending on its terms, is given by one person (referred to as the principal) to another (referred to as the agent), designating the latter as the principal's agent in all financial transactions pertaining to all of the principal's assets both inside and outside of the state.

A Texas Power of Attorney is necessary in cases where a person loses their capacity to make financial decisions due to mental illness, as stated in section 751.00201 of the Texas Durable Power of Attorney Act. The adjective "durable" suggests that this kind of power of attorney is effective regardless of the principal's disability or incapacity.

Section 751.0021, Texas Estate Code, Durable Powers of Attorney Act, lists the following prerequisites for a DPOA:

• Regardless of whether the phrase "Power of Attorney" is used, it is written or in any other format designating the agent.
• It must be signed by or on behalf of an adult principal.
• Any language that indicates the agent's authority is granted regardless of the principal's disability or incapacity, such as "This power of attorney is not affected by subsequent disability or incapacity of the principal" or "This power of attorney becomes effective on the disability or incapacity of the principal" is required.
• Before an authorized officer designated by state law to take acknowledgments and administer oaths, it must be acknowledged by the principal and agent.

Why Would You Need a Durable Power of Attorney in Texas?

A durable power of attorney (DPOA) gives the principal confidence that someone of their choosing is in charge of handling their finances and conducting business if they cannot do so for themselves. Even the most resilient individuals might experience life's unexpected events, such as illness or being away from home and unable to respond to emergencies. The following are a few other advantages of deciding to have a DPOA in addition to the aforementioned:

• Using a DPOA, you can decide who will manage your affairs in the event that you are unable to do it yourself. Rather than leaving these decisions up to the court, you can choose a representative you can rely on to operate in your best interests and honor your preferences.
• A DPOA guarantees that someone can effectively handle your business or substantial financial holdings in the event of your incapacity. This might lessen the chance that your financial affairs or company activities will be interrupted.
• A well-defined DPOA can help avoid family arguments and debates about who should make choices on your behalf. Appointing an agent beforehand can also reduce the likelihood of disputes arising between family members during times of tension.
• When a DPOA is properly performed, it can help prevent the need for trusteeship and oversight procedures, which can otherwise involve the court and incur significant costs and delays.
• With a DPOA, you can define the scope of your agent's authority and restrict their capabilities. This gives you privacy and autonomy over the choices your agent makes on your behalf.

How to Use Durable Power of Attorney in Texas?

A Texas durable power of attorney takes effect when the principal becomes incapable or incompetent or at the time specified in the document. An agent and principal instantly establish a "fiduciary" relationship when the agent signs the DPOA and accepts its provisions. This gives the agent the legal right to act on the principal's behalf until it is terminated, suspended, or revoked. The agent is then required to behave honorably, faithfully, and within the parameters of the authority entrusted to them.

In addition, when operating on behalf of the principal, the agent must sign with both the principal's and the agent's names to reveal their identification. One type of DPOA that allows an agent to make medical decisions on behalf of a principal in the case of incapacitation is the Medical Durable Power of Attorney, available in Texas under the Department of Health and Human Services. The agent will make all medical decisions for the principal, except the following, unless the POA specifies otherwise:

• Agents must not agree to the hospitalization of the principal for mental health services.
• Agents must not agree to convulsive treatment or psychotherapy.
• Agents must not agree to an abortion.
• Agent must agree to every care that keeps the principal comfortable.

Notwithstanding, and except stated otherwise, a Durable Power of Attorney in Texas generally allows an agent the right to carry out the following actions on behalf of the principal:

• The agent is authorized to handle all decisions, such as sale, lease, and mortgage, regarding the principal's real and tangible personal properties within and outside the state.
• The agent is authorized to handle all financial decisions, such as investments, loan acquisition, gifts, and fund disbursement.
• The agent is authorized to carry out every legal transaction geared towards the principal's interest geared toward the principal's interest in property and finances.
• In the case of a medical power of attorney, the agent is authorized to make decisions that will determine the well being of the principal, until they are restored to perfect health.
• An agent will be expected to handle tax-related matters such as filing tax returns.
• An agent will be expected to handle stock and bond transactions, personal and family maintenance, retirement plan transactions, insurance and annuity transactions, commodity and options transactions, and other related matters.

The Texas code provides additional information about the legal obligations and guidelines for the duties and implementation of a DPOA. However, the principal needs to make sure that the terms of operations are clearly outlined in the DPOA so that the agent has clear guidance regarding what they want.

Who Should be Selected as the agent for this type of PofA?

Given the nature of their role, it is crucial to consider specific essential characteristics when choosing an agent for a Durable Power of Attorney in Texas. Character traits like loyalty, honesty, and trustworthiness are vital to look out for. Ultimately, the goal is to find someone you can trust to make important decisions about your finances and life, so a principal should keep this in mind rather than randomly selecting someone. When designating an agent, there are a few fundamental legal conditions that also need to be taken into account. These requirements include:

• The principal and agent must be at least 18 years of age, meaning they are both adults.
• The agent and principal must both be in the right mental state for the selection.

It is also crucial to consider the person's ability to perform the job. Choosing an agent adept at handling money or business is likely to result in a more effective agent, possibly due to previous training or experience. For this reason, this should be a top priority. This is essential to increasing the principal's faith in the agent's capacity to do their duties.

Who Can Be an Agent?

As previously noted, trust is crucial when choosing an agent for your Durable Power of Attorney in Texas. You should consider the following options as potential agents: The following are some potential choices for agents:

• A family member such as a spouse, sibling (brother or sister), cousin, or any other relative.
• A very close friend or associate.
• A legal practitioner, business, or financial professional.

Above all, when making a decision, always keep trust in mind as this will ultimately inform the decision. By law, the person you have chosen to act as your agent must accept the appointment. They may do this by accepting the responsibility or by, making another statement or acting in a different way, but an acceptance is necessary for the process to continue. (Sec. 751.022 Durable Power Attorney Act)

Can there be More than One Agent?

Yes, a principal has the authority to designate one or more individuals as agents, also referred to as "co-agents," each co-agent is expected to function independently of the others, as stated in Texas Durable Power of Attorney Act Section 751.021. Remember that the agents must be in good mental health and be at least 18 years old to fill the positions. There are many benefits and drawbacks of having co-agents, however, the following are some:

Pros

• The principle can divide duties among several agents, which increases productivity and makes the task much easier to manage. Agents can manage several facets, such as business, medical, and financial.
• It is much simpler to assign various agents to oversee each of the principal's designated businesses and assets if they are spread across several cities.
• A further deterrent to greed and the urge to act wantonly is the division of labor among the agents; if an agent is found deficient, it only impacts one aspect at a time.

Cons

• Because each agent would need to be paid, managing a large number of agents might be far more expensive.
• Agents may frequently encounter disputes that interfere with their ability to make decisions harmoniously, influencing important steps that are necessary for advancement at vital junctures.

How to get Durable Power of Attorney in Texas

You can get a Durable Power of Attorney in Texas by following these steps outlined below:

• Decide the positions and duties you would like your agent (s) to take on: Since the individual assumes your function in that area, the first step in choosing a durable power of attorney is to determine which aspect (business, finance, or medical) and precise roles you would need an agent for before moving forward. Now is also the ideal time to determine if you will require co-agents.
• Choose the agent and get their permission: The next step is to choose the agent or co-agents and then designate them for the position. To start the responsibility, they would also need to respond to a notice of appointment that you would need to send them. Make sure the agent is an adult.
• Create the Durable Power of Attorney: The following action is to obtain the Durable Power of Attorney form, which can be found on the websites of the Texas Department of Health and Human Services, County, and that of approved third parties. As soon as the form is received, you will need to complete it completely and outline the agent's duties.
• Signing and Notarization: After completing the form, the principal and agent must sign it in front of a notarial officer appointed by state law as an authorized representative to take acknowledgments and administer oaths.
• Make copies and distribute them: The last action is to make copies of the Durable Power of Attorney and provide them to your agent (s) and any additional witnesses. When necessary, the agent will especially need to provide it to represent you.

Making a Durable Power of Attorney on your own is much less expensive than hiring a legal professional, whose fees can range from several hundred to thousands of dollars.

How to write Durable Power of Attorney in Texas

A Durable Power of Attorney in Texas often comes in written form, and in most cases, the forms are already available for download on government official websites, however here are a few details that must be present on the form:

• Title – Durable Power of Attorney
• Full names of the principal and agent
• Powers/roles assigned to the agent
• Special instructions for agent compensation
• Special instructions extending or limiting the powers given to your agent
• Date of signing/execution and commission expiration
• State and County of signing
• Signature of agent, principal and notarial officer

It should be noted that there is an optional section called "GRANT OF SPECIFIC AUTHORITY" on the statutory form that can be utilized to provide the agent special authorization.

To prevent nullification, it is crucial to ensure that all of the areas on the Durable Power of Attorney form are correctly filled out and that the instructions are closely followed. Filling out the form requires extreme consideration because the authenticity of each piece of information the agent provides is essential to the document's legitimacy.

How often must I update my Durable Power of Attorney?

The Texas Durable Power of Attorney (DPOA) does not explicitly state how long it must be updated with new information. However, there may be instances in which the principal decides to make changes to the document, in which case notarization and a new set of signatures are needed to make the updated version of the document valid. A principal may want to modify a DPOA for several reasons, which could include:

• The agent has become medically or mentally unfit to continue the duties assigned to them.
• The principal has decided to make changes based on a change in the behavior of the agent.
• The agent has successfully completed the tasks assigned to him/her.
• The principal experiences a change in health or living conditions.
• The agent opts for a modification or transfer of duties due to personal reasons such as a relocation or lack of interest to continue.

Does the agent have to Follow the Principal's Wishes in Durable Power of Attorney?

Yes, a Durable Power of Attorney (DPOA) binds an agent to act only in accordance with the principal's wishes as specified in the document once it has been accepted and signed. Any attempt to behave in a way that deviates from the tasks that the agent was specifically assigned under the DPOA would be viewed as a contract violation and result in legal ramifications. For this reason, it is crucial to choose a reliable agent; the significance of this cannot be overstated. An agent may run the risk of being terminated, for instance, if they start handling transactions involving tangible personal property against the principal's intentions and the DPOA's provisions when the agent is only permitted to manage real property transactions.

What Decision-Making Power Does the Durable P of A Grant the Agent?

The Durable P of A permits an agent to perform various tasks on behalf of the principal, especially in finances. This includes tasks related to real estate transactions, stock and bond transactions, claims and litigation, personal and family maintenance, and other areas that the principal designates. For instance, when an agent is tasked with managing the principal's personal or family maintenance, they are authorized to perform the following tasks:

• To keep the principal, their spouse, and other dependents' standard of living intact by seeing to it that the shelter's operational expenses—such as taxes, electricity bills, and repairs—are taken care of.
• To guarantee that the principal's living expenses, food, clothes, and domestic assistance are covered.
• To guarantee the payment of the principal's travel and vacation expenditures.
• To guarantee that hospitalization, custodial care, and the payment for medical, dental, and surgical care are constantly handled.
• To make certain that demands related to transportation—such as car replacement, license, insurance, and registration—are met.
• To manage payments and donations related to the principal's membership or affiliation with a church, club, society, order, or other institution.
• The agent is responsible for handling any mail related to the principal, which includes receiving, signing for, opening, reading, replying, and forwarding correspondence addressed to the principal. Additionally, representing the principal in all mail-related concerns before the US Postal Service.

These are the powers granted to the agent concerning the principal's personal and family maintenance; the Durable Powers of Attorney Act outlines the agent's responsibilities for each category and covers every other aspect of the principal's life specified in the Durable P of A. Most significantly, in order to prevent confusion and conflict, the principal must make sure to clearly define the tasks and duties they want the agents to carry out.

When does the Durable P of A start, and how long does it last?

On the day specified by the principal (DPOA) or upon notarization, a Texas Durable Power of Attorney takes effect. There are no particular legal prerequisites for the initiation and length of the DPOA, but it nonetheless goes into effect regardless of the principal's subsequent infirmity or incapacitation. But there are a few circumstances that might result in its termination, like:

• When the principal dies.
• When the principal revokes the power of attorney.
• When the power of attorney provides that it terminates.
• When the purpose of the power of attorney is completed.
• When the agent dies, becomes incapacitated, is no longer qualified or resigns.

Generally, a Texas Durable Power of Attorney can last for as long as it is necessary, however, it is important to specify the start and end dates when preparing the document.

Can the Durable P of A be revoked?

Revoking a Durable Power of Attorney (DPOA) in Texas requires taking particular legal actions. First, in order to revoke the DPOA, the principal must give written notification to the agent and any pertinent third parties. Next, in keeping with the original DPOA's level of formality, the principal must sign and date a formal revocation instrument.

All parties involved should receive copies of this revocation document, and the principal should preserve a copy for their records. Notifying third parties of the revocation of the initial DPOA is vital if they were to rely on it. To maintain financial and personal security, safeguard the principal's interests, create legal clarity, and stop unauthorized conduct, proper revocation is crucial. Following these protocols protects the principal's independence and lessens the likelihood of misunderstandings or disagreements about their matters.