What does it do?

A durable power of attorney is one that either takes effect upon or lasts after the principal's incapacitation. This is different from a general power of attorney, which would terminate at this point.

According to Section 751.00201 of the Texas Estates Code, a person is considered to be "incapacitated" for the purposes of a durable power of attorney if a doctor's examination finds that they are not able to manage their own finances. The doctor must provide a written statement certifying this finding of incapacity.

Texas's statutory form of durable power of attorney is found in Section 752.051 of the Texas Estates Code. It is a financial durable power of attorney - this means that it only allows the agent to handle financial matters. It does not permit the agent to make decisions about the principal's health care.

How long does it last?

Section 751.131 of the Texas Estates Code states that a durable power of attorney lasts until:

1. The principal dies;
2. The principal revokes the power of attorney;
3. The conditions of termination specified in the power of attorney have been fulfilled;
4. The agent's authority has been terminated under Texas Estates Code 751.132 and the power of attorney does not provide for a replacement; or
5. A guardian is appointed for the principal.

If a spouse was appointed as the agent and the couple divorces or the marriage is annulled or declared void, Section 751.132 of the Texas Estates Code states that their authority as agent terminates.

Why would I need one?

A durable power of attorney is generally used to make plans for the care of your finances, property, and investments in the event that you can no longer handle your financial affairs yourself.

Texas Law:

Discusses durable powers of attorney, which may serve as an alternative to a guardianship arrangement.

This chapter of the Texas Estates Code governs durable powers of attorney and contains a sample form at section 752.051.

Forms and more:

This statutory durable power of attorney form is available from the Texas Department of Health and Human Services in English and in Spanish.

eFileTexas's self-help section contains this interactive interview that will help you create completed forms for a durable power of attorney, medical power of attorney, an advance directive to physicians, a HIPAA medical records release, or all of the above.

The Texas A&M Real Estate Center has written this article that discusses durable powers of attorney, medical powers of attorney, and other advance directives. The article links to forms throughout.