Texas powers
of attorney

People say “power of attorney” as if it were one thing. In Texas it is two, governed by two different codes, executed two different ways, and doing two different jobs.

One does not cover the other. Your financial agent cannot consent to surgery. Your health care agent cannot pay your mortgage. Most complete Texas plans include both, plus a directive to physicians and a HIPAA authorization — see living wills and advance directives.

Texas provides a statutory form at Estates Code § 752.051. Using the statutory form matters: institutions recognize it, and the acceptance rules below are written around it.

What makes it valid

Texas Estates Code § 751.0021

A durable power of attorney must be a writing or other record that designates another person as agent; be signed by an adult principal or by another adult in the principal’s presence and at the principal’s direction; contain words showing the principal’s intent that the authority survive the principal’s disability or incapacity; and be acknowledged before an officer authorized to take acknowledgments of deeds and administer oaths.

The powers you can grant

The statutory form lets you grant authority by category — real property, tangible personal property, stocks and bonds, banks and financial institutions, business operations, insurance and annuities, estates and trusts, claims and litigation, personal and family maintenance, government benefits, retirement plans, and tax matters. You can grant all of them or select specific ones.

“Hot powers” require express authority

Some powers are dangerous enough that Texas will not let them be granted by accident. They must be specifically initialed or expressly conferred:

• Making a gift of your property.
• Creating or changing rights of survivorship.
• Creating or changing a beneficiary designation.
• Creating, amending, revoking, or terminating an inter vivos trust.
• Delegating the agent’s authority to someone else.

Why this matters for real families. If a parent needs long-term care and the plan depends on the agent being able to make gifts or fund a trust, the POA has to say so. A generic form downloaded for free almost never grants those powers — and by the time anyone notices, the principal may no longer have capacity to sign a better one.

Immediate or springing?

A springing POA takes effect only on incapacity. It feels safer and it works badly. Someone must first prove incapacity, usually with one or two physician letters, and every bank and title company will wait for that proof before doing anything. In an emergency, that delay is the whole problem.

We generally recommend a POA effective immediately, given to an agent you trust, with the original kept in your possession until it is needed. If you are not comfortable naming anyone under those terms, that is worth talking about — it usually means we need a different structure, not a springing clause.

A medical power of attorney names an agent to make health care decisions for you when your attending physician certifies you are unable to make them yourself.

Execution

Under Health & Safety Code § 166.154, you sign in the presence of two competent adult witnesses — at least one of whom must meet the independence requirements of § 166.003 — or you sign and have your signature notarized instead. If you cannot sign, another person may sign your name in your presence at your express direction.

The first witness cannot be

• The person you designated to make health care decisions for you.
• Related to you by blood or marriage.
• Entitled to any part of your estate, or someone with a claim against it.
• Your attending physician or their employee.
• An employee of the health care facility providing your direct care, or an officer or administrator of it.

This is where hospital-signed forms go wrong. A medical POA witnessed by two of your adult children is defective, because at least one witness must be independent. Sign it in our office with witnesses who qualify, not in a hospital corridor under pressure.

Pick a decision-maker, not a rank order

The right agent is the person who can hear a doctor say something terrible and still act on what you would have wanted. That is frequently not the oldest child, and it is frequently not the spouse. Name successors, and tell the people you did not name so they hear it from you rather than from a nurse.

For years the biggest problem with Texas powers of attorney was not drafting them — it was getting a bank to honor one. The 2017 amendments to the Texas Durable Power of Attorney Act fixed a great deal of that.

Texas Estates Code § 751.201

A person presented with a durable power of attorney must accept it or, before accepting, may request an agent’s certification of facts or an opinion of counsel within 10 business days, or an English translation within 5 business days. After receiving what was requested, the person must accept the power of attorney within 7 business days unless one or more grounds for refusal under § 751.206 exist.

Section 751.206 sets out the legitimate grounds for refusal — among them that the person has actual knowledge of the principal’s death or of the POA’s termination or invalidity, that the request exceeds the authority granted, or that they have a good-faith belief the POA is not valid or that the agent lacks authority. A refusal outside those grounds is not permitted.

What to do when a bank stalls. Ask them in writing to identify the statutory ground for refusal under § 751.206. Most branch-level refusals evaporate at that point, because there usually is not one — it is unfamiliarity, not law. Where it does not resolve, a court can order acceptance and award attorney’s fees.

Co-agents required to act jointly are a common source of paralysis — one signature short and nothing happens. If you name co-agents, we usually draft them to act independently unless there is a specific reason not to.

• It ends at your death. Every power of attorney terminates then. Authority passes to your executor, which requires probate.
• It cannot create a transfer on death deed. Estates Code § 114.054 prohibits it outright.
• It cannot make a will for you. Testamentary capacity is personal and non-delegable.
• It cannot override your own decisions while you have capacity. You remain in charge of your own affairs.
• It does not cover health care unless it is a medical power of attorney.
• It cannot be signed after you lose capacity. This is the one that hurts. Once capacity is genuinely gone, guardianship is the only remaining route.