WHAT IS A DURABLE POWER OF ATTORNEY IN TEXAS?

This question is one that is frequently asked in estate planning. A durable power of attorney in Texas is a signed paper that allows you to give your right to make business and final decisions, either temporarily or permanently, for yourself, to another person if you are unable to make such decisions at that time either due to illness, disability or some sort of incapacity. Such document will include, among other things, the name of the individual whom you are appointing as your agent, an alternate for such position, as well as a listing of what powers you are wanting to give your agent. The durable power of attorney document requires your signature before a notary or someone else who is lawfully authorized to administer oaths.

One of the most important decisions when executing a durable power of attorney is determining whether or not the power of attorney is going to be effective immediately when executed or if the power of attorney is going to become effective on your disability or incapacity. In most instances in which someone picks the latter, a doctor of physician would have to certify you as disabled or incapacitated before your power of attorney could be used on your behalf.

Another important decision when executing your durable power of attorney is determining how broad or narrow the powers that are given to your agent should be. Generally, giving broad powers is preferable as you never know what issues the power of attorney may have to deal with once they are working as your agent. However, should you give broad powers to your agent, you need to make sure that you have designated someone that you genuinely trust will make decisions in your best interest. In my practice, I have encountered several individuals who mistakenly believe that because they have their mother or father's durable power of attorney, thereby giving them access to their parents' bank accounts, they can use such funds in the accounts for their own benefit. Such beliefs are inaccurate and can subject the agent to potential criminal charges for such behavior in certain circumstances.

Once you have chosen your power of attorney and executed your Texas durable power of attorney document, it is a good idea to review your documents from time-to-time to make sure that you still believe that the person or persons you have chosen for such role(s) is still the best person for the job. Durable powers of attorney should always be a part of an effective and well thought out estate plan.

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