Do you need a Power of Attorney? In this article, we’ve done the research to help you understand the different types of POA, so you can decide which makes sense for your situation. So keep reading to learn all about the POA process in the State of Texas!
What Is Power of Attorney?
A power of attorney (or a “POA” for short) is a legal document that gives one person, usually called the “agent,” the legal authority to make certain types of decisions for another person, usually called the “principal.” Some people use a power of attorney to allow an agent to manage real estate, handle financial affairs, or run a business on their behalf for a period of time, often during a disability or near the end of life. Simply put, a POA is a contract between two persons but is not a court order. A court order will always prevail over a private POA in the event of a conflict.
Who Needs a POA?
The answer to who should have a POA in place depends on the principal’s condition and the type of actions that the principal would like to assign the agent to take on their behalf. Of course, the principal’s conditions can vary. Still, in summary, a POA exists so that someone else can take action for the principal when the principal cannot be physically or cognitively present. For example, one reason to grant a POA is if you want to transact business in another state but cannot attend a certain meeting or event. This has been particularly applicable during COVID-19, when interstate travel was often impractical or at times impossible.
General powers of attorney are used to allow someone to act for you in a wide variety of matters, such as entering into contracts, buying and selling property, drawing money from bank accounts, paying taxes and other bills, consolidating debts, dealing with government welfare agencies, and taking other actions on behalf of the principal. Note, however, that general POAs only last for as long as the principal remains capable of taking care of their own affairs. Should the principal become incapacitated, these types of POAs self-terminate. Thus, general POAs are not ideal for end-of-life planning or medical directives.
Another type of POA, the “statutory power of attorney” or “durable power of attorney,” is for when the principal becomes incapacitated or unable to make decisions. This type of POA gives an agent permission to access bank accounts, sell a property and make other important decisions on behalf of the principal.
How Long Does a POA Last?
POA laws in Texas generally follow the Restatement of the Law on agency, as follows: A general power of attorney in Texas terminates when the principal becomes incapacitated or can no longer make decisions for himself or herself, which status is generally determined by a court of law. (See Restatement of the Law – Agency, 3d § 3.08). Other circumstances under which a general power of attorney under Texas law could terminate include:
- After a time period specified in the POA (Restatement of the Law – Agency, 3d § 3.09);
- Once a specified task has been accomplished (Restatement of the Law – Agency, 3d § 3.09);
- When the principal dies (Restatement of the Law – Agency, 3d § 3.07); or
- When the power of attorney is revoked by the principal (Restatement of the Law – Agency, 3d § 3.10).
A durable power of attorney also ends with the death of the principal, at which time the designated executor of an estate takes over the management of affairs.
General vs. Limited Power
A general legal power of attorney in Texas allows the agent to complete a variety of transactions on behalf of the principal, essentially to enter into and complete nearly any business that the principal could themselves do.
A limited legal power of attorney in Texas, comparatively, gives the agent the power to perform only a specific transaction or act specifically set forth in the document, for example, completing a purchase or making an investment.
How to Gain Power of Attorney in Texas
How do you get power of attorney in Texas? How to get power of attorney and how to get medical power of attorney in Texas follow the same procedures. Texas Power of Attorney requirements are based on what roles and responsibilities are assigned in the document. In order to establish a legally valid Texas Power of Attorney that complies with Texas POA requirements, a principal must first determine what type of POA is needed and the scope of authority they wish to grant to their agent. Next, the principal should download, complete, and print out the appropriate Texas Power of Attorney Form. Finally, after the form is filled out, the principal should take it to a notary public to have the document witnessed and made official. All signatures must occur in the presence of the licensed notary. Signing requires two witnesses, one of whom may be the agent, a relative, a doctor, or a beneficiary of the principle, the other of whom should be a neutral third party. We often hear the question, “does the power of attorney need to be notarized in Texas?” The answer is yes; the document and any changes to it should be formally notarized. Once these steps are completed, power of attorney is validly granted.
It is never a bad idea to start the Power of Attorney process early so that if you need to or want to invoke a POA for a limited duration, you have one prepared and ready to go. Think about who you might trust to serve as your agent, and speak with them when drafting your POA. Then, if you are not ready to sign it just yet, you could even set it aside in a safe or safety deposit box to access when and if the need arises.
Contact The Law Offices of Kretzer & Volderbing P.C. Today
When you are trying to figure out how to utilize or understand Power of Attorney in Texas, you will need lawyers with specific experience in this area of law and who have the right knowledge and resources to help you.
Contact the Law Offices of Seth Kretzer online today to discuss your case and schedule a consultation.
