Many people think that an attorney must be involved in a "power of attorney," but this is not, in fact, the case. A power of attorney can be created by any competent adult in Texas, including a person currently in a jail or prison, who wishes to give another adult authority to act for them in some matter. That's where the "power" comes in.
But Texas inmates cannot make other inmates their agent, also called attorney-in-fact. Often they select family members or loved ones.
Anyone creating a power of attorney gives someone else the right (and power) to act on their behalf in some matter. It's important to understand what a Texas power of attorney involves before creating one.
What Is a Power of Attorney?
A power of attorney (POA) is a legal document, but it doesn't necessarily involve a lawyer. This document is created by one individual in order to give another person—named in the document—the power to act on their behalf. The person making the power of attorney document is the principal, and the person named to act for them is the agent.
In Texas, like in other states, the principal calls the shots when it comes to the POA document. It is the principal who selects the agent and, most importantly, who described the scope of the power they are giving.
Legal Requirements for Executing a Texas POA
In Texas, specific rules apply to anyone wishing to make a power of attorney, and this includes inmates. First, only adults age 18 or older have authority to make a POA in Texas. The individual must be of sound mind so that they understand what they are doing when they sign the document.
They must select an agent, specify the scope of the POA, and sign it before a notary public. If the POA authorizes the agent to conduct real estate transactions for the principal, the document must be filed with the clerk of each county where the principal's property is located.
Scope of a Power of Attorney
Texas POAs are as unique as the people who make them. There is no set form for a Texas POA, since each document is tailored to the particular situation in which the principal finds themselves. One person making a power of attorney may need a very specific task done by another—like selling their used car—another might need all of their finances to be handled by their agent.
How narrow can a POA be? A power of attorney can describe the authority transferred in as narrow a fashion as words permit. There are no limits on how narrow the power can be. A principal can write a POA to authorize another person to make a copy of their car keys, if they want to. It can be an extremely limited grant of authority for an extremely narrow purpose.
However, Texas also recognizes very broad grants of authority, and broad Texas POAs are generally in the realm of finances or health care. However, under state law, some types of authority cannot be granted generally but must be detailed in the language of the POA.
Powers Granted in a POA
That is, in a POA, an agent cannot be granted a general authority that will encompass all matters. In order to grant authority to do a few specific things with the principal's property, the language of the POA must clearly and directly grant the agent that authority. These include the power to:
- Make a gift of the principal's property.
- Create rights of survivorship
- Change rights of survivorship.
- Disclaim property.
- Create, amend, revoke or terminate an inter vivos trust.
- Change a beneficiary designation.
- Delegate authority under a power of attorney.
- Waive any right a principal might have to be a beneficiary of a joint and survivor annuity.
- Exercise fiduciary powers that the principal has authority to delegate.
- Access the electronic communications of the principal.
- Access digital assets of the principal.
POAs in Estate Plan
While "power of attorney" may sound like a document only the wealthy would use, this is far from the truth. Any person, including a prison inmate in Texas, may benefit from a power of attorney. This document appointing someone to act on one's behalf can be especially helpful in the short term to a prisoner since there are a number of things they will have trouble doing themselves while incarcerated.
And POAs are also a critical part of everyone's estate plan. Many people draw up a power of attorney to appoint someone to be in control of their assets or medical decisions when they are no longer able to make decisions for themselves.
A Texas durable power of attorney does not expire when a person becomes incompetent, so a resident can name a trusted person to manage their financial affairs or health care in case this occurs.
Limited and General POAs in Texas
The five principal types of powers of attorney in Texas are:
- General power of attorney: Authorizes the agent to act for the principal in a broad range of matters, but terminates if the principal becomes mentally or physically disabled or incapacitated.
- Limited or special power of attorney: Authorizes an agent to handle a specific matter or is valid only for a limited time.
- Durable power of attorney: Same as a general power of attorney but continues after disability or incapacity.
- Springing power of attorney: Gives agent authority only if and when the principal becomes disabled or incapacitated.
- Medical power of attorney: Authorizes agent to make medical care decisions for the principal if they are unable to do so themselves.
Generally, a POA lasts until the time period specified in the document is done, or a specified task has been accomplished. But it can also end when the principal dies or is incapacitated, or when the power of attorney is revoked by the principal.
Completing the Power of Attorney Form
The power of attorney form must be filled out and signed by the incarcerated person in front of a notary public. The power of attorney agent should keep the original copy and obtain copies for the inmate. Another copy should be sent to the Texas Department Criminal Justice, 209 W. 14th St., Suite 400, Austin, TX 78701
Note that one inmate is not permitted to give another inmate power of attorney. Should inmates do so, both inmates can be written a Level 3, Code 43, "Exerting any authority over another inmate," offense report. That is because the rule is that no inmate shall ever be placed in a position to exert control or authority over another inmate.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.