A durable power of attorney is a paper that will enable you to designate someone that you trust to engage in particularized business, financial and legal transactions on your account.
What makes a valid power of attorney in Texas?
Under the durable power of attorney statute in Texas, a durable power of attorney is correct when:
1. It is in writing and names another person as an agent and grants the agent authority to act on behalf of the person signing a power of attorney.
2. It is signed by an adult or signed by another adult in the adult principal’s conscious presence and at the principal’s direction.
3. It includes 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 words similar to those phrases that show that the principal intends to confer authority to the agent notwithstanding the principal’s disability or incapacity; and
4. The principal or other adult signs it at the principal’s command in front of a notary.
If the law of the jurisdiction in which the document was executed provides that the authority conferred on the agent is exercisable despite the principal’s subsequent incapacity, the power is considered a durable power of attorney under Texas law whether the term “power of attorney” is used.
Refusing a durable power of attorney
A third party has three choices when presented with a valid durable power of attorney: (1) to accept it; (2) to request that the agent sign a certificate; or (3) to ask the agent to provide an opinion of counsel. And that third party’s request must be made timely. Failure to follow this law forfeits the third party’s opportunity to refuse the durable power of attorney.
There are eleven reasons that a third party can refuse to accept a durable power of attorney in Texas. If that third-party refuses, it must give the agent a written Private Reason Affidavit, which is signed under penalty of perjury. If that third-party fails to timely provide a Private Reason Affidavit, the agent or principal can sue for an order requiring that the document be accepted, in addition to attorney’s fees and court costs. To read more about a third party’s reasons for refusing to honor a durable power of attorney, please read the statute by clicking here.
Before this law, financial institutions could come up with arbitrary reasons for refusing a valid durable power of attorney. That is no more in Texas. With this new Texas durable power of attorney statute, those days are behind us.
Getting a lawyer to provide a durable power of attorney in Waco
Your durable power of attorney must be recognized by those third parties that rely upon it. With a lawyer on your side, it will provide you peace of mind. Our board-certified estate planning and probate lawyer can help you create a valid and properly executed document. If you have questions about a durable power of attorney then, please contact us for a free consultation about it.
Vance Dunnam, Jr.
Vance has been licensed by the State Bar of Texas since 1977 and has practiced law in Waco, Texas since 1978.Read More