Power of attorney in Texas: form, signing and powers

Words used in Texas

In Texas you name an agent for money and property in a durable power of attorney, and a health care agent in a separate medical power of attorney. Your end-of-life treatment wishes go in a third document, the directive to physicians. If an adult cannot manage and has no documents, a court can appoint a guardian, but only if alternatives and supports will not work.

An agent (also called an attorney-in-fact) is the person you choose to act for you. You are the principal.

Money and property

Durable power of attorney; statutory durable power of attorney

The person you choose

Agent (older documents and some sections also say "attorney in fact")

Health care

Medical power of attorney

Treatment wishes

Directive to physicians and family or surrogates ("directive")

Court-appointed decision-maker

Guardian of the person, guardian of the estate (a guardianship can be full or limited); the adult is called the "ward"

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

How to revoke a power of attorney in Texas

Official forms in Texas

Forms published by the state or its courts. You open them on the official site.

Financial power of attorney

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

Health care directive

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

Living will

• Directive to Physicians and Family or Surrogates

Guardianship / conservatorship

• 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)

Free help in Texas

• TexasLawHelp.org (Texas Legal Services Center) - legal help directory
• Texas HHS Forms: Advance Directives (medical power of attorney, directive to physicians, mental health declaration, statutory durable power of attorney, out-of-hospital DNR)
• TexasLawHelp.org: Guardianship
• TexasLawHelp.org: Alternatives to guardianship (supported decision-making)
• TexasLawHelp.org: Advance directives

Report abuse or exploitation

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

More for Texas

• Everything about powers of attorney in Texas
• Health care directive
• Guardianship
• Signing checklist
• Revoke a power of attorney
• What is a power of attorney?
• Durable vs springing power of attorney