Understanding the Texas Durable Power of Attorney

Durable POA TX

What Is a Durable POA?

Often included as part of a complete estate plan, this document provides a way to choose someone to make financial decisions on your behalf when you cannot make those decisions yourself. The person creating the Power of Attorney is known as the “principal,” and the person given the ability to make the financial decisions is known as the “attorney-in-fact” or “agent.” Texas law provides but does not require the standardized form called a Statutory Durable Power of Attorney (Tex. Ests. Code § 752.001 et seq.). An explanation of the Texas Durable Power of Attorney Act begins with Section 751.001.

What is the Timeframe of a Durable POA?

The power of attorney may go into effect immediately or take effect when the principal is no longer able to make decisions (called a springing power of attorney). Tex. Ests. Code §751.002. Unless the principal indicates an end date, the power of attorney does not expire. Tex. Ests. Code §751.004

What Powers Does It Grant?

The principal can include a range of powers defined by statute. Tex. Ests. Code §§752.101-115. In addition to those powers, the principal can include specific instructions not defined by statute. For example, the power to provide reimbursement, gifts, or compensation to the agent are other options that the principal may include. The attorney-in-fact may only act using powers specifically defined in the power of attorney. As a trustee, he or she is accountable to the principal for all financial decisions.

Financial powers of attorney are an important estate planning tool, and a competent probate or estate planning lawyer should be used to draft this document or enforce rights related to a Durable Power of Attorney.

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