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

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