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A durable power of attorney can be a lifeline when someone needs help managing their affairs, but it is not a blanket authority. Its power depends on how it is written and the laws that govern it. In some situations, even a carefully prepared document may fail to work as expected. Knowing where its authority stops helps prevent misunderstandings and protects the person it is meant to serve.
Understanding the Scope of a Durable Power of Attorney
A DPOA remains valid even if the principal becomes incapacitated, unlike a standard power of attorney that ends when incapacity occurs. However, the scope of the agent’s authority depends on the document’s wording and the applicable laws. Some DPOAs grant broad authority over many aspects of life, while others focus on specific matters such as financial management or healthcare decisions. Even the most comprehensive DPOA cannot override every legal restriction.
Situations That Render a Durable Power of Attorney Invalid
The Principal’s Death Ends the DPOA
The most significant limitation is that a DPOA ends immediately upon the principal’s death. Once that happens, only the executor or personal representative appointed by a will or court can act. The agent cannot use the DPOA to access accounts, pay bills, or manage property after the principal passes away.
Revocation by the Principal
As long as the principal is mentally capable, they can revoke the DPOA at any time. This revocation must follow state laws, which often require a written notice. Once revoked, the agent loses all authority, even if third parties have not yet been informed.
Court Orders Overriding the DPOA
A court can limit or terminate an agent’s powers if there is evidence of misuse, abuse, or conflict of interest. If a court appoints a guardian or conservator for the principal, that person may replace the agent in some or all decision-making areas.
Lack of Specific Powers in the Document
A DPOA only grants powers that are specifically mentioned. If the document does not address a particular action, the agent cannot legally perform it. For example, if it covers only financial matters, the agent cannot make healthcare decisions without a separate healthcare power of attorney.
Restrictions on Certain Medical Choices
In some states, agents cannot make decisions about life support, psychiatric treatment, or organ donation unless those powers are clearly granted. Without this explicit language, medical providers may refuse to follow the agent’s instructions in these areas.
Examples of Where a DPOA Falls Short
- Property Sales – Selling the principal’s home without a clearly stated power to do so will likely fail.
- Gifting Authority – Large transfers of money or assets may be blocked if the DPOA does not allow gifts.
- Marriage or Divorce Decisions – No DPOA can authorize an agent to marry or divorce on behalf of the principal.
- Voting Rights – Agents cannot vote in elections for the principal.
- Illegal Acts – Any request that violates the law remains invalid, even if the DPOA grants broad authority.
The Role of State Law in Limiting Powers
State statutes define how DPOAs work and where they stop. Some states require extra witness signatures for certain powers. Others limit gifting amounts or impose special rules for real estate transfers. An agent who operates across state lines must verify that the DPOA is valid in each location where they intend to act.
Issues With Outdated or Rejected Documents
Banks, investment firms, and hospitals may reject old DPOAs even if they are legally valid. They may request updated documents to protect themselves from liability. Outdated references to laws that have since changed can also cause problems. An old DPOA might not address digital assets, for example, which have become increasingly important.
When Court Approval Is Necessary Despite a DPOA
Even a well-prepared DPOA may not be enough in certain legal situations. Examples include:
- Changing beneficiaries on life insurance or retirement accounts
- Moving property in or out of a trust without clear authority
- Initiating or defending probate disputes
These matters usually require court approval to proceed.
Misunderstandings That Lead to Problems
Believing a DPOA Covers Everything
Many people assume an agent can take any action the principal could take. This is not true. Only actions listed in the DPOA are valid, and some are restricted by law.
Thinking It Replaces a Will
A DPOA operates only during the principal’s lifetime. Once the principal dies, the will or trust determines what happens to their assets.
Assuming It Works Internationally
A U.S. DPOA may not be recognized overseas. International transactions often require compliance with local legal systems and may involve extra certification steps.
Ways to Strengthen a Durable Power of Attorney
Keep It Updated
Regular reviews help keep the document current with laws, personal needs, and institutional requirements. Updating it every few years can prevent rejection due to its age.
Select the Right Agent
Choose someone trustworthy, organized, and capable of making sound decisions. The wrong choice can lead to disputes and even court intervention.
Be Clear and Specific
If you want the agent to handle certain tasks such as business management, property sales, or digital accounts, state this clearly in the document.
The Importance of Legal Guidance
An attorney can help write or update a DPOA so it meets state requirements and covers the necessary powers. This reduces the risk of rejection or unintended gaps in authority. Legal advice becomes even more important when dealing with multi-state property, unique assets, or complicated family situations.
Key Takeaways
A durable power of attorney is a strong tool for managing your affairs when you cannot, but it has limits. It stops working upon death, cannot authorize actions beyond what is granted, and may be restricted by law or court order. State laws, document wording, and the willingness of institutions to accept it all affect how well it works. Reviewing the DPOA regularly and seeking professional guidance helps it serve its intended purpose when needed most.
Other Related Articles
- Navigating Power of Attorney Paperwork for Business Owners in Texas
- What Are the Key Elements and Limitations of a Medical Power of Attorney?
- How Do You Revoke a Power of Attorney in Texas?
- Financial Power of Attorney in Texas: A Comprehensive Guide to Empowering Your Financial Future
- Who Has Power of Attorney After Death if There Is No Will?
- Navigating Power of Attorney Paperwork for Business Owners in Texas
- What Is a Durable Power of Attorney?
- Texan Trails: Exploring the Wild West of Medical Power of Attorney!
- Guardianship vs Power Of Attorney In Texas: Which Is Right For You
- When does a medical power of attorney not work?
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas estate planning as well as about how your family’s circumstances may be impacted by the filing of a probate or guardianship proceeding.
