Power of attorney, health care directive and guardianship in Texas

Financial power of attorney in Texas

Law and official form

Law

Durable Power of Attorney Act

Uniform Power of Attorney Act

Yes (effective 2017-09-01)

Official form

Statutory Durable Power of Attorney (Estates Code 752.051)Published by Texas Health and Human Services Commission

You do not have to use it.

You do not have to use this form; other forms of power of attorney may be used. The form covers property and money only, not health care. It ends with a notary acknowledgment and an 'Important Information for Agent' page. HHSC lists the form as effective 9/2017 (Word file; Spanish version also posted).

Law: Tex. Est. Code §§ 751.001, 751.003; HB 1974 (85th Leg., 2017); Tex. Est. Code §§ 752.001, 752.003, 752.051

Signing rules

How to sign

A durable power of attorney must be in writing, signed by you, and acknowledged before a notary public or another officer who can take acknowledgments and give oaths. It must contain words saying it is not affected by your later disability or incapacity, or that it starts on your disability or incapacity.

Who signs

Signed by you (an adult), or in your conscious presence by another adult you direct to sign your name.

Notary

Required

Witnesses

None required

Agent's acknowledgment

No separate agent signature is required. A person accepts the job of agent by acting as agent or by other conduct showing acceptance, unless the document says otherwise.

Electronic signing

A durable power of attorney can be a writing or other record, and a record includes information stored in electronic form. It must still be acknowledged before a notary or other officer. A Texas online notary public may take the acknowledgment by two-way audio-video conference.

Law: Est. Code 751.002(6), 751.0021(a)(1); Gov't Code 406.107, 406.110

Law: Tex. Est. Code §§ 751.0021, 751.0023, 751.022

Durable and springing

Is it durable?

A power of attorney is a durable power of attorney under Texas law only if it contains words 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', or similar words. On the statutory form, if you cross out neither choice, you are treated as choosing that it is not affected by your later incapacity.

Law: Est. Code 751.0021; Est. Code 752.051

Durable unless it says otherwise?

No: it continues after incapacity only if it says so.

Starting later (springing)

The power of attorney can say it 'becomes effective upon my disability or incapacity.' Unless the document defines it differently, you are considered disabled or incapacitated when a physician certifies in writing, after examining you on a date later than the date you signed, that you are mentally incapable of managing your financial affairs. A bank may ask the agent for a physician's statement that you are presently disabled or incapacitated.

Law: Est. Code 751.00201, 752.051; Est. Code 751.203

What an agent can and cannot do

Needs express permission

• Create, change, revoke or end a living (inter vivos) trust
• Make a gift
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Delegate authority granted under the power of attorney

No power of attorney can

Unless the document says otherwise, an agent who is not your parent or other ancestor, spouse, or descendant may not use the power of attorney to give themselves, or someone they must support, an interest in your property, even if the document allows gifts or beneficiary changes. Gifts under a general gift power are limited to the federal annual gift tax exclusion amount per person. The statutory form says it does not authorize anyone to make medical or other health care decisions for you.

Law: Est. Code 751.031(c); Est. Code 751.032

Law: Tex. Est. Code § 751.031(b)

Agent duties, pay and court review

Agent duties

• Act as a fiduciary toward you when acting as agent
• Tell you in a timely way about each action taken under the power of attorney
• Keep records of each action taken or decision made, until they are delivered to you, you release the agent, or a court discharges the agent
• Give you a full accounting when you ask for one
• Tell you, and protect your interests if you are incapacitated, if they learn another agent is breaching their duties
• Preserve your estate plan as far as reasonably possible, if the agent knows of it and it is in your best interest

Agent pay

Unless the power of attorney says otherwise, the agent is entitled to be repaid reasonable expenses and to compensation that is reasonable under the circumstances. The statutory form lets you choose 'reimbursement but no compensation.'

Law: Est. Code 751.024

Asking a court to review an agent

You, the agent, a guardian or other fiduciary acting for you, a person named to receive property at your death, a government protective-services agency, or anyone who shows sufficient interest in your welfare or estate can ask a court to interpret the power of attorney, decide whether it is valid, or review the agent's conduct. If you ask, the court must dismiss the case unless it finds you lack capacity to revoke the power of attorney. You can also demand an accounting.

Law: Est. Code 751.251; Est. Code 751.104

Law: Tex. Est. Code §§ 751.101-751.104, 751.121, 751.122

When it ends and how to revoke it

It ends when

• You die
• You revoke it
• It says it ends, or its purpose is accomplished
• The agent dies, becomes incapacitated, is no longer qualified or resigns, and no other agent is named
• The agent's marriage to you is ended by divorce or annulment or declared void, unless the document says otherwise
• A permanent guardian of your estate qualifies (a temporary guardian of the estate suspends it)

Divorce ends a spouse's authority

Yes · Divorce rules in Texas (Divorce Law Map)

How to revoke

You can revoke a power of attorney or a particular agent's authority. The Act does not set a required method for revoking. Signing a new power of attorney does not cancel an older one unless the new one says it revokes the earlier one or all others.

Telling others

Tell the agent and every bank or business that has a copy. An agent or other person who acts in good faith without actual knowledge that the power of attorney or the agent's authority has ended is protected, and the act binds you.

Law: Tex. Est. Code §§ 751.131, 751.132, 751.133; Tex. Est. Code §§ 751.131, 751.132, 751.134, 751.135

Banks, other states and real estate

Banks and other businesses

A person asked to accept a durable power of attorney must accept it, or within 10 business days ask for an agent's certification (under penalty of perjury) or a lawyer's opinion, and then accept within 7 business days of receiving it, unless a legal ground for refusal applies. A business may not demand its own form or recording at the county clerk unless recording is required by law. A refusal must be explained in writing. The principal or agent can sue; the court can order acceptance and award costs and attorney's fees. A photocopy or electronically sent copy has the same effect as the original unless the document or another statute says otherwise.

Law: Est. Code 751.201, 751.203, 751.204, 751.206; Est. Code 751.202; Est. Code 751.207; Est. Code 751.212; Est. Code 751.0023(c)

Signed in another state

A durable power of attorney signed in another state is valid in Texas if it was signed according to the law that governs its meaning, or the federal military power of attorney rules.

Law: Est. Code 751.0023(b), 751.0024

Real estate

If the agent signs a real property document that will be recorded (such as a deed, deed of trust, mortgage, mineral lease or lien), the durable power of attorney must be recorded with the county clerk of the county where the property is, no later than 30 days after that document is filed for recording. The statutory form warns that for your agent to sign home equity loan documents, you must sign the power of attorney at the office of the lender, a lawyer, or a title company.

Law: Est. Code 751.151; Est. Code 752.051

Health care directive in Texas

The document and its form

Document

Medical Power of Attorney (Designation of Health Care Agent)

Official form

Medical Power of Attorney Designation of Health Care Agent (MPOA)Published by Texas Health and Human Services CommissionVersion: 05-2024 (printed in the form footer)

You do not have to use it.

Living will

Directive to Physicians and Family or Surrogates

The living will is a separate document.

The directive states your wishes about life-sustaining treatment if you have a terminal or irreversible condition. You can also name a person in it to make treatment decisions. It is signed with two qualified witnesses or before a notary. Doctors and facilities may not require it to be notarized or require their own form. Tell your attending physician that you have one.

Living will

Law: Tex. Health & Safety Code §§ 166.154, 166.164; Tex. Health & Safety Code §§ 166.032, 166.033, 166.036

Signing rules

How to sign

Sign the medical power of attorney in front of two qualified adult witnesses, who also sign, or instead sign it and have your signature acknowledged by a notary public. The same rule applies to the directive to physicians.

Who signs

Signed by you. If you are physically unable to sign, another person may sign your name in your presence and at your express direction.

Notary

A notary or witnesses (your choice)

Witnesses

2 (instead of a notary)

Who cannot witness

Each witness must be a competent adult. At least one of the two witnesses must NOT be: your health care agent; related to you by blood or marriage; entitled to part of your estate by will or by law; your attending physician or the physician's employee; an employee of a health care facility where you are a patient who gives you direct care, or an officer, director, partner or business office employee of the facility; or someone with a claim against your estate.

Electronic signing

You, the witnesses or a notary may sign a medical power of attorney, directive to physicians, or a written revocation with a digital or electronic signature that meets the rules in Health and Safety Code 166.011 (verifiable, under the signer's sole control, and invalidated if the data changes).

Law: Tex. Health & Safety Code §§ 166.003, 166.011, 166.032, 166.154

Who can be your agent and what the agent can do

Who cannot be your agent

While serving in that role, these people may not act as your agent: your health care provider; an employee of your health care provider unless related to you; your residential care provider; an employee of your residential care provider unless related to you.

Law: Health & Safety Code 166.153

When the agent starts

The agent can act only after your attending physician certifies in writing, in your medical record, that you are incompetent. Treatment may not be given or withheld over your objection, even then. The medical power of attorney stays in effect until you revoke it; if it has an expiration date and you are incompetent on that date, it continues until you regain competence.

Law: Health & Safety Code 166.152

Decisions an agent cannot make

An agent may not consent to voluntary inpatient mental health services, convulsive treatment, psychosurgery, abortion, or neglect through leaving out care mainly meant for your comfort.

Law: Health & Safety Code 166.152(f)

Revoking and conflicting documents

Revoking your agent

You can revoke a medical power of attorney at any time, whatever your mental state, by telling your agent or a licensed health or residential care provider, orally or in writing, by any other act that shows you intend to revoke it, or by signing a new medical power of attorney.

Revoking your instructions

You can revoke a directive to physicians at any time, whatever your mental state, by destroying it (or having someone do so in your presence at your direction), by signing and dating a written revocation, or by saying you revoke it. A written or oral revocation takes effect when your attending physician is told about it (or a written one is mailed to the physician).

Telling others

A provider who learns of the revocation of a medical power of attorney must record it in your medical record and notify the agent and your other known providers.

Divorce ends a spouse's authority

Yes · Divorce rules in Texas (Divorce Law Map)

Conflicting documents

If two advance directives or treatment decisions conflict, the one made later controls.

Law: Health & Safety Code 166.008

Law: Tex. Health & Safety Code §§ 166.042, 166.155

If you have no directive

Who decides without a directive

If you are in a hospital, nursing home, or with a home and community support services agency, cannot communicate, and have no guardian or medical power of attorney agent reasonably available, an adult from this list, in this order, may consent to medical treatment for you. A surrogate may not consent to voluntary inpatient mental health services or electro-convulsive treatment. For decisions about life-sustaining treatment when you have no directive, the attending physician and one person from the same list, in the same order, make the decision. Disputes about who may act go to a court that hears guardianship cases.

1. Spouse
2. Adult children
3. Parents
4. Nearest living relative

Law: Tex. Health & Safety Code §§ 166.039, 313.004

Other states, registry and medical orders

Signed in another state

An advance directive validly made in another state has the same effect in Texas as one made under Texas law, but it cannot authorize care that Texas law prohibits.

Law: Health & Safety Code 166.005

Mental health directive

You can sign a Declaration for Mental Health Treatment covering psychoactive medication, convulsive treatment and emergency mental health treatment. It must be signed with two witnesses or acknowledged before a notary. A witness cannot be your health or residential care provider or their employee, a facility operator or employee, a relative by blood, marriage or adoption, an heir or beneficiary, or someone with a claim against your estate. It expires after 3 years unless you are incapacitated at that time.

Law: Civil Practice and Remedies Code 137.002, 137.003

Guardianship and conservatorship in Texas

What guardianship or conservatorship is

What it is called

Guardian of the person, guardian of the estate (full or limited authority); temporary guardian

When a court may appoint one

An 'incapacitated person' is an adult who, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for themselves, care for their own physical health, or manage their own financial affairs. Before appointing a guardian, the court must find by clear and convincing evidence that the person is incapacitated, that guardianship is in their best interest, and that alternatives to guardianship and available supports and services were considered and are not feasible.

Law: Est. Code 1002.017; Est. Code 1101.101

Kinds

• Guardian of the person
• Guardian of the estate
• Full authority (person totally without capacity)
• Limited authority (person can do some but not all tasks)
• Temporary guardian

Law: Tex. Est. Code §§ 1002.017, 1101.001, 1101.101, 1101.151, 1101.152, 1054.201

Who can ask, which court and your own choice

Who may ask

Any person may file a sworn application for appointment of a guardian. TexasLawHelp says you must hire a lawyer to apply to be a guardian, because only a licensed attorney may represent another person's interests, and lawyers in guardianship cases must be certified in guardianship law.

Court

The county court, county court at law, or statutory probate court with probate jurisdiction in the proper county.

Choosing your own

While you have capacity, you can sign a Declaration of Guardian naming who should (and should not) be your guardian. It must be written entirely in your handwriting, or signed before two witnesses who are at least 14 and not named as guardian; if it does not disqualify anyone, it may instead be acknowledged before a notary. The court must appoint your choice unless that person is disqualified or would not serve your best interests, and may never appoint someone you disqualified.

Law: Est. Code 1104.202, 1104.203, 1104.204

Effect on a power of attorney

When a permanent guardian of your estate qualifies, your agent's powers under a durable power of attorney are automatically revoked unless the court orders them only suspended; a temporary guardian of the estate suspends them unless the court confirms the power of attorney. The agent must turn over your assets and account to the guardian. For a medical power of attorney, the probate court decides whether to suspend or revoke the agent's authority.

Law: Est. Code 751.133; Health & Safety Code 166.156

Cost, fee waiver and forms

Fee waiver

Statement of Inability to Afford Payment of Court Costs or an Appeal Bond. Health and Safety Code 166.039(g) lets the court waive fees when a family member challenges a life-sustaining treatment decision through temporary guardianship.

Source: Texas Supreme Court form

Forms

• Declaration of Guardian in the Event of Later Incapacity or Need of Guardian (statutory form, Estates Code 1104.204)
• Statement of Inability to Afford Payment of Court Costs or an Appeal Bond (bilingual)

Steps

Steps

Other options and where to report abuse

Supported decision-making

Supported decision-making agreement

Effective September 1, 2015

An adult with a disability can choose a supporter to help them get and understand information and communicate their own decisions. The supporter cannot make decisions for them. Supported decision-making is listed in Texas law as an alternative the court must consider before guardianship.

Signed voluntarily by the adult with a disability and the supporter in front of two or more witnesses who are at least 14 years old, or a notary public. It must be in substantially the statutory form.

Source: Official text

Less restrictive options

• Medical power of attorney: Names an agent to make health care decisions if you cannot.
• Durable power of attorney: Names an agent for money and property.
• Declaration for mental health treatment: Records your mental health treatment choices in advance.
• Representative payee: Someone manages public benefits such as Social Security.
• Joint bank account: A trusted person can help with banking.
• Management trust or special needs trust: Property is managed in a trust for the person.
• Declaration of guardian before the need arises: You choose in advance who would be your guardian.
• Supported decision-making and person-centered planning: Trusted people help the person make their own decisions.

Report abuse or exploitation

Texas Abuse Hotline (Department of Family and Protective Services, Adult Protective Services) · 1-800-252-5400

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Law: Tex. Est. Code §§ 1357.051, 1357.052, 1357.055, 1357.056

Good to know in Texas

• Texas updated its Durable Power of Attorney Act in 2017 with provisions of the Uniform Power of Attorney Act. A durable power of attorney must be notarized.

  Law: HB 1974, effective September 1, 2017; Est. Code 751.0021

• Texas uses three separate health documents: the medical power of attorney, the directive to physicians, and the declaration for mental health treatment (HHSC Advance Directives forms).
• Banks and other businesses must accept a valid durable power of attorney within set deadlines or give written reasons, and can be sued for an improper refusal.

  Law: Est. Code 751.201-751.212

• Texas has an Out-of-Hospital Do-Not-Resuscitate Order form for emergency personnel, published by the Department of State Health Services.

  Law: Health & Safety Code 166.083

  Source: HHSC forms page

Questions about powers of attorney in Texas