Under Texas law, all types of powers of attorney (POA) must be notarized to be valid. The term notarized means that the power of attorney form must be signed in the presence of a notary public, a public servant authorized to take acknowledgments and certify copies of documents recordable in public records. In Texas, two primary forms of powers of attorney are: general power of attorney, which means a power to make decisions while the principal retains capacity, and durable powers of attorney, the power to make decisions if the person granting the power becomes disabled or incapacitated.
Terms to Understand
The basic terms to understand are: principal, the person granting a power of attorney, and agent or attorney in fact, the person to whom the power is granted. It is also important to be aware that the direct translation of notary public in Spanish is notario público, but this term presents a slight concern. In Spanish, the term means a party who may give legal advice in some Latin American countries, but a notary public in the U.S. is not an attorney and is not authorized to practice law.
When a Texas Durable POA Is Needed
A principal needs a durable POA if they believe that at some point, they will become disabled or incapacitated. A general power of attorney will end if a principal becomes disabled or incapacitated. Texas Estates Code Section 751.00201 provides that a principal becomes disabled or incapacitated for purposes of a durable power of attorney if a doctor finds, based on their medical examination of the person, that the person is mentally incapable of managing their financial affairs. The doctor must provide a written statement certifying the finding of disability or incapacity of the principal.
Texas has a statutory form for a durable POA. This is a financial durable power of attorney. This form allows the agent to make only financial decisions for the principal, not medical decisions.
When Durable POA Terminates
A durable POA lasts until the principal dies, revokes the power of attorney or the conditions of termination specified in the power of attorney have been fulfilled. A durable power of attorney may also terminate when the agent’s authority has been terminated, and the POA does not provide for a replacement or a guardian is not appointed for the principal. When a spouse is appointed as the agent, but the partners get divorced or the marriage is annulled and declared void, the former spouse ceases to be an agent.
Limited Powers of Attorney
There are two recognized limited, or special, powers of attorney in Texas. These are the limited POA for eligible motor vehicle transactions and the limited power of attorney for tax collection. The motor vehicle form allows the agent to perform acts related to motor vehicles, such as buying, transferring and assigning legal title to a specific motor vehicle. The tax collection form allows an accountant, attorney or other agent to engage with the Comptroller of Public Accounts on behalf of a taxpayer with regard to tax collection.
The limited power of attorney for eligible motor vehicle transactions cannot be used in a dealer transaction to complete a title assignment on a motor vehicle subject to federal odometer disclosure. If a power of attorney is used to apply for title, initial registration or a certified copy of title, the principal and the agent must include photocopies of their photo identification, in compliance with state law.
The limited POA for tax collection form does not grant all powers to an agent by default. A principal can check off certain boxes to grant an agent only some powers, such as the power to sign and file documents, including tax returns, and to discuss relevant issues with regard to the principal’s tax/fee audits.
Resources Relating to POAs
An individual who wants to learn more about the different types of powers of attorney and how to act for another party should consult books on estate planning. They can also talk to an attorney who specializes in estate law, elder law and medical powers of attorney. A principal may want to consider identifying an alternate agent, who can make the same decisions about medical care as the designated agent. That way the principal has multiple people to rely on with regard to their medical care.
- Texas State Law Library: Powers of Attorney, Durable Powers of Attorney
- Texas Estates Code: Sec. 751.0021 Requirements of Durable Power of Attorney
- Texas Secretary of State: Notary Public
- Texas Secretary of State: Notary Public Educational Information
- Texas Estates Code: Section 752.051 Statutory Durable Power of Attorney Form
- Texas State Law Library: Powers of Attorney, General Information
- Texas Department of Motor Vehicles: Limited Power of Attorney for Eligible Motor Vehicle Transactions
- Texas Comptroller of Public Accounts: Power of Attorney Forms
- Texas Department of Health and Human Services: Medical Power of Attorney, Designation of Health Care Agent
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.