Finance
Instrument: Durable Power of Attorney (DPOA)
What is it for?
A “durable power of attorney” (DPOA) allows an adult (the “principal”) to appoint at least one other adult (the “agent(s)”) to manage a principal’s property and financial matters.
What does it do?
A DPOA is a writing or other record that designates an agent and grants them authority to act in the place of the principal on a variety of property and financial matters. Tex. Est. Code Ann. § 751.0021(a).
A DPOA, however, does not authorize an agent to make health care decisions for the principal. Tex. Est. Code Ann. § 751.0015(2).
For a DPOA to be considered “durable,” which means that the agent’s authority continues during a period when the principal lacks capacity, the DPOA must contain the words, “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 indicating that the agent’s authority continues despite the principal’s subsequent disability or incapacity. Tex. Est. Code Ann. § 751.0021(a).
In making decisions for the principal, the agent must generally act in good faith and only within the scope of the authority granted in the POA. Tex. Est. Code Ann. § 751.101.
Third parties must generally accept decisions made by the agent as if the principal had made them. They may, however, request the agent for a certification of the POA’s validity. Tex. Est. Code Ann. § 751.201.
How does one make it?
A DPOA must be in writing, be signed either by the principal or in the principal’s conscious presence by another adult directed by the principal to sign for them, and be notarized. Tex. Est. Code Ann. § 751.0021.
When does it come into effect?
A DPOA can state that the agent’s authority begins either immediately upon execution, at a future date, or upon the occurrence of a future event, such as if the principal becomes “disabled or incapacitated.” Unless the DPOA states otherwise, the principal is considered “disabled or incapacitated” if a physician certifies in writing that based on the physician’s medical examination of the principal, the principal is determined to be mentally incapable of managing their financial affairs. Tex. Est. Code Ann. § 751.00201.
How long does it last?
A DPOA lasts until the principal dies; a principal or a court revokes the DPOA; the DPOA form provides for a separate termination procedure which is satisfied; the purpose of the DPOA is accomplished; a permanent guardian is appointed for the principal’s estate; or the named agent(s) dies, becomes incapacitated, or resigns. Tex. Est. Code Ann. § 751.131.
How does one end it?
While the exact manner of the principal revoking a DPOA is not specified, an agent must be informed of the revocation in order for it to be given effect. Tex. Est. Code Ann. § 751.134. Note that executing a subsequent DPOA does not automatically revoke a prior DPOA unless the subsequent DPOA specifically states that it revokes any prior DPOA’s that affect the principal. Tex. Est. Code Ann. § 751.135.
What does an example look like?
A sample DPOA form is available at Tex. Est. Code Ann. § 752.051. Sample forms can also be found here on the Texas Health and Human Services Commission website, in English and Spanish, and they are also available here.
What else should one know?
Texas’ DPOA is based on the Uniform Power of Attorney Act.
Last updated July 2022
Education
No information available at this time.
Health
Instrument: Medical power of attorney (MPOA)
What is it for?
The “medical power of attorney” (MPOA) allows an adult (the “principal”) to designate another (the “agent”) to make health care decisions on the principal’s behalf should the principal be unable to make such decisions.
What does it do?
The MPOA gives the agent the power to make any health care decision on the principal’s behalf that the principal could make if the principal had capacity to do so. Tex. Health & Safety Code Ann. § 166.152(b). However, an agent cannot consent to voluntary inpatient mental health services; convulsive treatment; psychosurgery; abortion; or neglect of the principal through the omission of palliative care. Tex. Health & Safety Code Ann. § 166.152(f).
An agent must, after consultation with the attending physician and other health care providers, make a health care decision according to the agent’s knowledge of the principal’s wishes, including the principal’s religious and moral beliefs. If the agent does not know the principal’s wishes, the agent must make the decision according to the agent’s assessment of the principal’s best interests. Tex. Health & Safety Code Ann. § 166.152(e).
An agent may not be the principal’s health care provider, the principal’s residential care provider; or an employee of the principal’s health care or residential care provider unless that person is the principal’s relative. Tex. Health & Safety Code Ann. § 166.153.
A health or residential care provider cannot require a person to execute an MPOA as a condition for being admitted to a hospital, nursing home, or residential care home; receiving insurance; or accessing health or residential care. Nor can a provider refuse health or residential care to a person or charge that person a different rate solely because the person has executed a MPOA. Tex. Health & Safety Code Ann. § 166.159.
How does one make it?
An MPOA must be in writing and signed by the principal in the presence of at least two qualifying witnesses or have their signature notarized. Tex. Health & Safety Code Ann. § 166.154 (a)-(b). If the principal is physically unable to sign, another person may sign the MPOA with the principal’s name in the principal’s presence and at the principal’s express direction. Tex. Health & Safety Code Ann. § 166.154(c).
When does it come into effect?
The agent’s authority begins only if the principal’s attending physician certifies in writing that the principal is incompetent and files the certification in the principal’s medical record. Tex. Health & Safety Code Ann. § 166.152(b). The agent’s authority ends if an incompetent principal regains their competency. Tex. Health & Safety Code Ann. § 166.152(g).
How long does it last?
An MPOA generally continues until the principal dies or revokes the MPOA. An MPOA may also end on a specific state, if specifically stated in the MPOA. However, if the principal becomes incompetent after the MPOA’s expiration date, then the MPOA remains in effect to be effective until the principal becomes competent. Tex. Health & Safety Code Ann. § 166.152(g).
How does one end it?
The principal may revoke an MPOA either orally or in writing by notifying the agent, the principal’s physician, or the principal’s health or residential care provider of the principal’s intent to revoke. A principal may revoke an MPOA whether or not they are considered competent to do so. Tex. Health & Safety Code Ann. § 166.155(a)(1). Also, if the principal executes a subsequent MPOA then any prior MPOA is automatically revoked. Tex. Health & Safety Code Ann. § 166.155 (a)(2).
What does an example look like?
A sample MPOA form is available at Tex. Health & Safety Code Ann. § 166.164. The Texas Health and Human Services Commission also provides sample forms here, in English and Spanish.
What else should one know?
Texas also recognizes declarations for mental health treatment, which allow principals to state preferences or directions specific to mental health treatment that are binding on providers. Tex. Civ. Prac. & Rem. Code § 137.004.
Last updated July 2022
General
Instrument: Supported decision-making agreement (SDMA)
What is it for?
A “supported decision-making agreement” (SDMA) allows an adult with a disability to choose one or more other adults (the “supporter(s)”) to support and accommodate the adult when making a range of life decisions. Tex. Est. Code Ann. § 1357.002(3). An SDMA may also be used specifically for education decisions. 19 Tex. Admin. Code § 89.1049(e).
What does it do?
An SDMA authorizes the supporter to do any or all of the following: assist the adult in accessing, collecting, and obtaining information that is relevant to a given life decision; assist the adult with a disability in understanding information given to them; and assist the adult in communicating the adult’s decisions to appropriate persons. Tex. Est. Code Ann. § 1357.051.
These forms of support and accommodations may be provided for a range of decisions, including decisions related to where the adult wants to live, the services, supports, and medical care the adult wants to receive, whom the adult wants to live with, and where the adult wants to work, without impeding the self-determination of the adult. Tex. Est. Code Ann. § 1357.002(3).
Supporters have a fiduciary duty to act loyally to the adult with a disability in good faith, to act within the specific authority granted to them in the SDMA, and to avoid conflicts of interest. Tex. Est. Code Ann. § 1357.052(b).
Supporters may not coerce an adult with a disability that they assist with into entering into an SDMA, nor unilaterally override a decision the adult with a disability has made.Tex. Est. Code Ann. § 1357.051.
For the purposes of creating an SDMA, “disability” means any physical or mental impairment that substantially limits one or more major life activities. Tex. Est. Code Ann. § 1357.002(2).
How does one make it?
An SDMA must be signed voluntarily, without coercion or undue influence, by the adult with a disability and the supporter in the presence of two or more subscribing witnesses or a notary public. If signed before two witnesses, the witnesses must be at least 14 years old. Tex. Est. Code Ann. § 1357.055.
When does it come into effect?
Presumably, the SDMA is effective immediately once it is executed. Tex. Est. Code Ann. § 1357.055.
How long does it last?
The SDMA lasts until the principal or the supporter revokes it, or it is revoked by law. Tex. Est. Code Ann. § 1357.053(a).
How does one end it?
The SDMA can be ended in a number of ways. The SDMA could end on a date stipulated in the SDMA agreement. Also, either the principal or the supporter may revoke the agreement, although the exact process for revoking an SDMA is not made clear. Finally, an SDMA can end if the Texas Department of Family and Protective Services finds that the adult with a disability has been abused, neglected, or exploited by the supporter; the supporter is found criminally liable for this conduct; or a temporary or permanent guardian of the person or estate appointed for the adult with a disability decides to end the SDMA. Tex. Est. Code Ann. § 1357.053(b).
What does an example look like?
A sample SDMA form is provided at Tex. Est. Code Ann. § 1357.056. An electronic copy of this form is available here. Another example of a SDMA can be found here, on the Texas Council for Developmental Disabilities website.
What else should one know?
Texas requires school districts to provide to students or parents information and resources on SDMAs if either requests info on guardianship or alternatives to guardianship. Tex. Educ. Code Ann § 29.0112(b)(7).
Last updated July 2022