No one plans to lose the ability to manage their own affairs, but dementia, a stroke, or a sudden accident can take that ability away without warning. When it happens in Texas without the right documents in place, a family may have to ask a probate court to appoint a guardian, a process that is public, expensive, and slow. A Texas powers of attorney attorney helps you put a durable power of attorney, a medical power of attorney, a directive to physicians, and related documents in place so that people you trust can act for you under the rules the Texas Legislature has set.
Holmes Law is the practice of Michael Holmes, an attorney licensed in Texas who works with clients remotely throughout the state. This page explains how Texas law handles incapacity: the Texas Durable Power of Attorney Act in the Estates Code, the advance directive provisions of Chapter 166 of the Health and Safety Code, who makes medical decisions when there is no document, and the alternatives to guardianship. It is general information within Holmes Law’s Texas elder law practice, not advice about your specific situation.
The Texas Durable Power of Attorney Act
Financial powers of attorney in Texas are governed by Subtitle P of Title 2 of the Texas Estates Code, Chapters 751 and 752. The Legislature substantially updated the Act in 2017, adopting many concepts from the Uniform Power of Attorney Act while keeping several distinctly Texas features. Chapter 752 contains the statutory durable power of attorney form, which lists categories of authority the principal can grant by initialing them, such as real property transactions, banking, retirement plans, taxes, and claims and litigation.
A power of attorney is “durable” when it states that it is not affected by the principal’s later disability or incapacity, or that it becomes effective on the principal’s disability or incapacity. A durable power can be immediately effective or “springing.” With a springing power, the document usually requires a written physician’s statement that the principal is incapacitated before the agent can act, and third parties may insist on seeing that statement. For older Texans, an immediately effective power often avoids delays at exactly the wrong time.
Key agent duties are set out in Subchapter C of Chapter 751. An agent who accepts appointment is a fiduciary, must act in good faith and within the authority granted, must keep records of transactions, and must account to the principal on request. An agent also should attempt to preserve the principal’s estate plan to the extent the agent knows it.
Executing a Valid Texas Power of Attorney
A Texas durable power of attorney must be in writing, signed by the principal (or by another person at the principal’s direction in the principal’s presence), and acknowledged before a notary public or other officer authorized to take acknowledgments. Witnesses are not required for the financial power of attorney, unlike the medical power of attorney discussed below.
If the agent will use the power for a real property transaction, Section 751.151 of the Estates Code requires the power of attorney to be recorded in the county where the property is located. A power of attorney intended to be used for a Texas home equity loan must also satisfy the constitutional requirements for home equity lending, which affects where and how the loan documents are signed.
Divorce matters too. Under Section 751.132, if the principal’s spouse is the agent and the marriage is dissolved by divorce or annulment, the spouse’s authority terminates unless the document expressly provides otherwise. After a divorce, update your documents rather than relying on that default.
“Hot Powers” That Must Be Granted Expressly
Some powers are so significant that Texas requires them to be granted specifically. Under Section 751.031, an agent may do the following only if the power of attorney expressly authorizes it:
- Create, amend, revoke, or terminate an inter vivos trust.
- Make a gift.
- Create or change rights of survivorship.
- Create or change a beneficiary designation.
- Delegate authority granted under the power of attorney.
The statute also limits an agent who is not an ancestor, spouse, or descendant of the principal from using principal property to benefit the agent or someone the agent must support, unless the document allows it. For elder law and Medicaid planning, these hot powers are critical. An agent may need authority to fund a Qualified Income Trust, make exempt transfers, or change beneficiaries to implement a Medicaid plan, and a basic form without these powers can leave the family stuck. On the other hand, broad gifting authority creates risk of abuse, so it should be granted thoughtfully and with limits. Note also that under Chapter 114 of the Estates Code, an agent cannot create a transfer on death deed for the principal, so those deeds must be signed by the owner while he or she has capacity.
When Banks and Others Must Accept a Texas Power of Attorney
A common frustration is a bank or brokerage firm that refuses to honor a valid power of attorney. The 2017 amendments added acceptance rules in Subchapter E of Chapter 751. A person presented with a durable power of attorney that appears to be properly acknowledged generally must accept it, or give a written refusal stating the reasons, within ten business days after presentation. The person may ask for an agent’s certification of facts under penalty of perjury, an opinion of counsel on a matter of law, or an English translation, which extends the timeline.
Section 751.206 lists the permitted grounds for refusal. They include a good-faith belief that the power is not valid or that the agent lacks authority, actual knowledge that the power has terminated, a pending lawsuit about the power, the agent’s failure to provide a requested certification or opinion, and a good-faith belief, including after a report to Adult Protective Services, that the principal may be subject to abuse, neglect, or exploitation. If a person refuses without a valid reason, the principal or agent can bring an action to compel acceptance, and the court may award reasonable attorney’s fees and costs.
Medical Powers of Attorney and Directives to Physicians
Health care decisions are governed by the Texas Advance Directives Act, Chapter 166 of the Health and Safety Code.
Medical Power of Attorney
A medical power of attorney under Subchapter D of Chapter 166 lets you name an agent to make health care decisions when your attending physician certifies that you cannot make them yourself. The document must be signed before two qualified witnesses or acknowledged before a notary. At least one witness must not be related to you, entitled to your estate, your attending physician or the physician’s employee, or certain health facility employees. The statutory form includes a disclosure statement explaining the agent’s authority.
Directive to Physicians and Family or Surrogates
Texas’s version of a living will is the Directive to Physicians and Family or Surrogates in Subchapter B. It states your wishes about life-sustaining treatment if you have a terminal or irreversible condition. It too requires two qualified witnesses or a notary.
Out-of-Hospital DNR and POLST
Texas has not adopted a statewide POLST or MOST program. Instead, Subchapter C of Chapter 166 provides the Out-of-Hospital Do-Not-Resuscitate order, a standardized form that emergency medical personnel and other health care professionals outside a hospital must honor. For people with serious illness, the OOH-DNR is the Texas tool for making resuscitation wishes effective at home or in a facility.
Declaration for Mental Health Treatment
Chapter 137 of the Civil Practice and Remedies Code allows a separate declaration expressing preferences about psychoactive medication, convulsive treatment, and emergency mental health treatment.
Who Decides When There Is No Document
If a Texas adult cannot make health care decisions and has no medical power of attorney or guardian, Texas law supplies default surrogates. For general medical treatment in hospitals, nursing homes, and certain other settings, Chapter 313 of the Health and Safety Code, the Consent to Medical Treatment Act, lists surrogates in order of priority, beginning with the spouse, then adult children, then parents, then an individual the patient clearly identified before incapacity, then the nearest living relative, and finally a member of the clergy. For decisions about life-sustaining treatment, Section 166.039 authorizes the attending physician and a legal guardian or, if none, a qualified relative in a specified order to make the decision together.
Default rules have gaps. Unmarried partners and close friends are not on the lists, adult children may disagree, and the statute does nothing for financial decisions. A medical power of attorney avoids those problems.
Capacity: What It Takes to Sign
To sign a power of attorney or will, a person must have the required mental capacity at the moment of signing. For a power of attorney, Texas courts generally ask whether the principal understood the nature and effect of the document and the business being transacted. A diagnosis of dementia does not automatically mean a person lacks capacity, especially in earlier stages. When capacity may later be challenged, it helps to document the signing carefully, sometimes with a contemporaneous physician’s evaluation, and to meet with the client privately, away from family members who benefit from the documents.
Guardianship and Its Alternatives in Texas
Guardianship of adults is governed by Title 3 of the Texas Estates Code. A court may appoint a guardian of the person, a guardian of the estate, or both, and the guardianship may be full or limited. Before creating one, the court must find that alternatives to guardianship and supports and services were considered and are not feasible. Texas law recognizes several of those alternatives:
- Durable and medical powers of attorney, which are the primary way to avoid guardianship.
- Supported decision-making agreements under Chapter 1357 of the Estates Code, which let an adult with a disability choose a supporter to help him or her make decisions without giving up legal authority.
- Revocable trusts, in which a successor trustee can manage trust assets if the grantor becomes incapacitated. See Texas revocable trusts.
- Management trusts under Chapter 1301 of the Estates Code, which a court can create for an incapacitated person’s property as an alternative to or in conjunction with a guardianship of the estate.
- Representative payees and VA fiduciaries for government benefits.
You can also sign a Declaration of Guardian in the Event of Later Incapacity or Need of Guardian under Section 1104.202, naming the person you want to serve, and disqualifying people you do not want, if a guardianship ever becomes necessary.
How Holmes Law Prepares Texas Incapacity Documents
Michael Holmes prepares a coordinated set of documents rather than a single form. A typical Holmes Law incapacity plan includes a statutory durable power of attorney tailored with appropriate hot powers and safeguards, a medical power of attorney, a directive to physicians, HIPAA authorizations, a declaration of guardian, and, when appropriate, an OOH-DNR discussion with the client’s physician. These documents work alongside a Texas will or Texas trust as part of a complete Texas estate plan. For clients thinking about long-term care, the power of attorney is drafted with Medicaid and VA planning in mind; see Texas Medicaid planning.
Holmes Law is a remote practice. Consultations take place by video and phone, and signing is arranged with a notary and witnesses near you.
Frequently Asked Questions
Does a Texas durable power of attorney need witnesses?
No. A Texas statutory durable power of attorney must be signed and acknowledged before a notary. Witnesses are required for the medical power of attorney and directive to physicians unless they are notarized.
Can my agent make gifts to family members?
Only if the power of attorney expressly authorizes gifts under Section 751.031. Many Texans grant limited gifting authority for Medicaid or tax planning, with safeguards.
What if the bank refuses my power of attorney?
The bank generally must accept the power or state its reasons in writing within ten business days, subject to requests for certification, an opinion of counsel, or translation. If the refusal is not justified, a court can order acceptance and award fees.
Is a power of attorney from another state valid in Texas?
Texas generally recognizes a durable power of attorney that was validly executed under the law of the state where it was signed. Texas institutions may still be more comfortable with a Texas form, so many people who move here sign new documents.
Does Texas have a POLST form?
No statewide POLST program has been adopted. Texas uses the Out-of-Hospital DNR order, along with the directive to physicians and medical power of attorney.
When does a Texas power of attorney end?
It ends at the principal’s death, on revocation, when the purpose is accomplished, when a court appoints a permanent guardian of the estate (for the financial power), or, for a spouse-agent, on divorce unless the document provides otherwise.
Speak With a Texas Powers of Attorney Attorney
The ideal time to sign incapacity documents is while you are healthy and your decisions cannot be questioned. Holmes Law can review existing documents or prepare a new, coordinated set under current Texas law. Contact Holmes Law to schedule a remote consultation with Michael Holmes. You may also find the Texas elder abuse and financial exploitation page helpful if you are concerned about how an existing agent is acting.