Table of contents:
Statutory Authority
The statutory basis for durable powers of attorney in Texas is found in the Texas Health & Safety Code, Chapter 132.
The relevant provisions of the Texas Health & Safety Code are:
Texas Health & Safety Code §132.001
- Defines a durable power of attorney as a power of attorney that remains valid even if the principal becomes incapacitated.
- Sets forth the requirements for creating a durable power of attorney.
Texas Health & Safety Code §132.002
- Specifies the powers that may be granted to an agent under a durable power of attorney.
- Limits the powers that may be granted to an agent under a durable power of attorney for health care.
Texas Health & Safety Code §132.003
- Sets forth the duties of an agent under a durable power of attorney.
- Provides for the termination of a durable power of attorney.
Scope of Authority
A Texas statutory durable power of attorney grants comprehensive powers to the agent to act on behalf of the principal in a wide range of matters.
These powers can be broadly categorized into three main areas: healthcare, financial management, and personal care.
Healthcare Powers
The agent is empowered to make decisions regarding the principal’s medical care, including:
- Choosing and consenting to medical treatments
- Making end-of-life decisions
- Accessing and reviewing medical records
Financial Management Powers
The agent can handle the principal’s financial affairs, such as:
- Managing bank accounts and investments
- Buying and selling property
- Paying bills and taxes
Personal Care Powers
The agent can assist with the principal’s personal needs, including:
- Arranging for housing and transportation
- Providing companionship and emotional support
- Making decisions about clothing, grooming, and daily routines
Execution Requirements
Ensuring the validity of your Texas statutory durable power of attorney is crucial. This involves adhering to specific formalities during execution.
The execution process necessitates the presence of two witnesses, who must be present simultaneously while you sign the document. Additionally, a notary public must be present to acknowledge your signature and the signatures of the witnesses.
Notary Requirements
- The notary must be impartial and not have any interest in the power of attorney.
- The notary must verify your identity and the identity of the witnesses.
- The notary must witness your signature and the signatures of the witnesses.
- The notary must complete the notarial certificate and affix their seal.
Revocation and Termination
A Texas statutory durable power of attorney can be revoked or terminated in several ways.
The principal can revoke the power of attorney at any time by:
- Executing a written revocation.
- Making an oral revocation in the presence of two witnesses.
- Destroying the original power of attorney document with the intent to revoke it.
The power of attorney may also be terminated automatically in certain circumstances, such as:
Incapacity of the Principal
If the principal becomes incapacitated, the power of attorney is automatically terminated. Incapacity means that the principal is unable to make or communicate responsible decisions regarding their own affairs.
If the principal regains capacity, they may execute a new power of attorney to reinstate the authority granted to the agent.
Duties of the Agent
An agent acting under a Texas statutory durable power of attorney has fiduciary duties and responsibilities to the principal. These duties include acting in the best interests of the principal, exercising reasonable care and diligence, and keeping the principal informed of the agent’s actions.
The agent’s duties are based on the principles of agency law, which impose a duty of loyalty, obedience, and accountability on agents. The agent must act in the best interests of the principal and must not use the power of attorney for personal gain.
Examples of Agent’s Obligations
- The agent must act in accordance with the principal’s wishes, as expressed in the power of attorney document.
- The agent must keep the principal informed of the agent’s actions and decisions.
- The agent must exercise reasonable care and diligence in carrying out the principal’s instructions.
- The agent must avoid conflicts of interest and must not use the power of attorney for personal gain.
- The agent must keep the principal’s property separate from the agent’s own property.
- The agent must account to the principal for all of the agent’s actions and decisions.
Liability and Protections
Agents acting under a Texas statutory durable power of attorney are generally not personally liable for actions taken on behalf of the principal, provided they act in good faith and within the scope of their authority.
However, agents may be held liable if they:
- Breach their fiduciary duty to the principal
- Act outside the scope of their authority
- Act negligently or recklessly
- Use the power of attorney for personal gain
- Fail to account for their actions
Protections and Immunities
Agents acting in good faith under a Texas statutory durable power of attorney are entitled to certain protections and immunities:
- Immunity from personal liability for actions taken within the scope of their authority
- Reimbursement for reasonable expenses incurred in carrying out their duties
- Compensation for their services, if agreed upon with the principal
Use in Healthcare Settings
In healthcare settings, a Texas statutory durable power of attorney grants the agent the authority to make medical decisions on behalf of the principal. This includes the power to consent to or refuse medical treatment, access medical records, and communicate with healthcare providers.
The agent should prioritize the principal’s wishes and best interests when making healthcare decisions. They must also consider the principal’s values, beliefs, and preferences. If the principal has not expressed their wishes, the agent should consult with family members, friends, or healthcare professionals to determine the most appropriate course of action.
Agent’s Role in Healthcare Decision-Making
- Obtain and review medical records.
- Consult with healthcare providers to understand the principal’s medical condition and treatment options.
- Discuss treatment options with the principal, if possible.
- Make decisions about medical treatment, including consenting to or refusing procedures.
- Communicate with healthcare providers on behalf of the principal.
Use in Financial Management
A Texas statutory durable power of attorney can be used to grant an agent authority to manage the principal’s financial affairs. This includes the power to:
- Access and manage bank accounts
- Pay bills and other expenses
- Invest and manage investments
- Sell or purchase real estate
- File taxes
Agent’s Fiduciary Duty
The agent has a fiduciary duty to act in the best interests of the principal and to manage their financial affairs prudently. This means that the agent must:
- Act in good faith
- Exercise reasonable care and diligence
- Avoid conflicts of interest
- Keep accurate records
Advance Directives and End-of-Life Planning
Texas statutory durable powers of attorney and advance directives are two important legal documents that can help ensure that your wishes are respected at the end of your life.
A statutory durable power of attorney allows you to appoint an agent to make decisions on your behalf if you become incapacitated. An advance directive, such as a living will or healthcare directive, allows you to state your wishes about end-of-life care.
Living Wills
A living will is a document that states your wishes about end-of-life care, such as whether you want to be kept alive on life support if you are terminally ill or in a persistent vegetative state.
Healthcare Directives
A healthcare directive is a more comprehensive document that allows you to state your wishes about a wider range of end-of-life care issues, such as pain management, organ donation, and hospice care.
Both living wills and healthcare directives can be used to ensure that your wishes are respected at the end of your life. However, it is important to note that these documents are not legally binding in all cases. For example, if you are in a coma and cannot communicate your wishes, your doctor may make decisions about your care based on their own medical judgment.
It is important to talk to your doctor and your family about your end-of-life wishes and to make sure that your wishes are documented in a living will or healthcare directive.
Comparison with Other Legal Instruments
Texas statutory durable powers of attorney are not the only legal instruments available for managing someone’s affairs. Other options include trusts and conservatorships.
Trusts are legal entities that hold property for the benefit of others. They can be used to manage both financial and non-financial assets. Conservatorships are court-ordered arrangements in which a person is appointed to manage the affairs of another person who is unable to do so.
Advantages and Disadvantages
Each of these legal instruments has its own advantages and disadvantages.
- Statutory durable powers of attorney are relatively easy to create and do not require court approval. However, they only give the agent authority to act on the principal’s behalf while the principal is still alive.
- Trusts can be more complex and expensive to create than statutory durable powers of attorney, but they offer more flexibility and can be used to manage assets after the principal’s death.
- Conservatorships are the most restrictive of the three options, but they offer the most protection for the principal. Conservatorships are typically only used when the principal is unable to manage their own affairs.
