Skip to content 
When planning for the future, one of the crucial aspects to address is who will make decisions on your behalf if you become incapacitated. This is where a Power of Attorney (POA) comes into play. In Texas, you have options, and two primary types are the Durable Power of Attorney and the General Power of Attorney.
Understanding the distinction between these two is essential for effective estate planning. Choosing the appropriate power of attorney is necessary to guarantee a robust estate plan.
Key Differences Between Durable and General Power of Attorney
Both Durable and General Powers of Attorney grant someone (your “agent” or “attorney-in-fact”) the legal authority to act on your behalf in financial or legal matters. However, there’s a fundamental difference that significantly impacts when that authority ends. That difference is extremely important in your Texas estate planning.
Let’s break it down in a very straightforward way. Afterwards, there will be detailed explanations.
| Feature | Durable Power of Attorney | General Power of Attorney |
| Effectiveness | Takes effect immediately OR upon specified event | Takes effect immediately |
| Termination | Remains in effect upon incapacity | Automatically terminates upon incapacity |
| Purpose | Long-term planning, including incapacity | Short-term, specific transactions or periods |
| Durability | “Durable” – survives incapacity | Not durable – ends if incapacitated |
| Texas Estate Plans | Essential for comprehensive protection | Limited use in complete long term plans. |
Detailed Explanation of Each Power of Attorney
General Power of Attorney in Texas
A General Power of Attorney grants broad powers to an agent. The agent is authorized to handle financial transactions, real estate dealings, and other legal matters, just as if they were you. That person is authorized to step into your shoes, legally.
However, and this is the critical point, a General Power of Attorney automatically terminates if you become incapacitated. Incapacity means you’re unable to make or communicate decisions due to illness, injury, or any other reason. Because of that characteristic, a General Power of attorney has only limited usefulness in Texas estate planning.
Durable Power of Attorney in Texas
A Durable Power of Attorney, in contrast, contains specific language that allows the power to endure even if you become incapacitated. This “durability” clause is what differentiates it from a General Power of Attorney. This document specifies that the agent’s authority continues, even if you are no longer able to manage your own affairs.
Because of this durability, a Durable Power of Attorney is a cornerstone of any solid estate plan in Texas. It provides assurance that someone you trust can handle your finances, property, and other matters without interruption, even if you are facing serious health challenges. It provides protection.
Why is Durability So Important?
Think of it this way: If you’re in an accident and are temporarily in a coma, a General Power of Attorney becomes useless. Your agent would suddenly lose all authority to act on your behalf. Your bills wouldn’t get paid. Important financial decisions would stall.
With a Durable Power of Attorney, however, your agent’s authority continues without a hitch. They can manage your bank accounts, pay your mortgage, deal with insurance companies, and handle other essential matters, ensuring stability during a difficult time. Durability provisions are needed.
What are the Differences in the Requirements for a Valid Durable vs General Power of Attorney in Texas?
Both a Durable Power of Attorney and a General Power of Attorney in Texas must meet certain basic requirements to be legally valid. However, the Durable Power of Attorney, because of its enduring nature, has an additional, critical requirement. The distinctions must be followed.
Requirements for Both General and Durable Powers of Attorney in Texas
First, let’s look at the common ground. To be valid in Texas, both types of POAs generally require the following:
- The Principal Must Have Capacity: The “principal” is you – the person granting the power. At the time of signing, you must be of sound mind. That means you must understand the nature of the document and the powers you are granting. This is a fundamental requirement.
- The Document Must Be in Writing: Oral agreements to grant power of attorney are not enforceable in Texas. The document must be written.
- Clear Identification of Principal and Agent: The document must clearly identify both you (the principal) and the person you are appointing as your agent (the “attorney-in-fact”). Full legal names and addresses are best practice.
- Clearly Defined Powers: The document must clearly state the powers you are granting to your agent. Ambiguity is a recipe for disaster and challenges in court.
- Signed by the Principal: Your signature, as the principal, is absolutely required.
- Proper Notarization: Texas law requires that your signature on a Power of Attorney be acknowledged before a notary public. The notary verifies your identity and confirms that you are signing the document willingly.
The Critical Additional Requirement for a Durable Power of Attorney
Here’s where the Durable Power of Attorney has a unique and essential requirement:
To be valid as a Durable Power of Attorney in Texas, the document must contain specific language stating that the power survives your incapacity. This is non-negotiable.
The Texas Estates Code provides specific wording that satisfies this requirement. A commonly used phrase is:
“This power of attorney is not affected by subsequent disability or incapacity of the principal.”
Alternatively, the document state:
“This power of attorney becomes effective on the disability or incapacity of the principal.” (This creates a “springing” durable power of attorney).
Without this explicit language, or substantially similar language, the document will be treated as a General Power of Attorney, and it will terminate upon your incapacity. This defeats the entire purpose of creating a durable power.
Other Important Considerations (Not Requirements, but Best Practices)
While not strictly required for validity, these are strong recommendations for any Power of Attorney in Texas:
- Agent’s Signature: While not legally required in Texas, it’s a very good idea to have your agent sign the document, acknowledging their acceptance of the responsibilities.
- Witnesses (Optional, but Recommended): Although not required by Texas law for a notarized Power of Attorney, having witnesses (in addition to the notary) can provide an extra layer of protection against claims of fraud or duress. This is more common in other states, but it’s still a good practice.
- Specificity of granted powers. The powers granted should be specifically enumerated.
Key the crucial additional requirement of including specific language stating that the power survives the principal’s incapacity. Failing to include this language renders the document a General Power of Attorney, which terminates upon incapacity. Proper execution is absolutely necessary.
Which Should You Choose Between Durable Power of Attorney and General Power of Attorney in Texas?
The decision between a Durable Power of Attorney and a General Power of Attorney in Texas hinges on one central question: Do you want your agent’s authority to continue even if you become incapacitated? The answer to that question almost always dictates the best choice. The difference is the durability.
The Case for the Durable Power of Attorney (Almost Always the Best Choice)
For the vast majority of individuals creating an estate plan, the Durable Power of Attorney is the superior, and frankly, the essential choice. Here’s why:
- Comprehensive Protection: The primary purpose of estate planning is to prepare for all eventualities, including the possibility of illness, injury, or cognitive decline. A Durable Power of Attorney ensures that your chosen agent can seamlessly manage your affairs without interruption, even if you are unable to make decisions yourself. This is critical for paying bills, managing property, accessing accounts, and making other vital financial and legal decisions.
- Avoiding Guardianship: If you become incapacitated without a Durable Power of Attorney, your loved ones will likely have to go to court to seek guardianship. This is a public, often expensive, and emotionally draining process. A Durable Power of Attorney avoids this entirely, allowing your pre-selected agent to step in immediately. Guardianship is a long and expensive process.
- Peace of Mind: Knowing that your affairs are in order, no matter what, provides immense peace of mind, both for you and your family. A Durable Power of Attorney offers that assurance. It represents the best protection.
- Texas Estate Plan: The Durable Power of Attorney is the best document to protect your interests.
When a General Power of Attorney Might Be Considered (Limited Circumstances)
There are very few situations where a General Power of Attorney alone is sufficient or preferable. These are typically limited, short-term, and specific scenarios:
- Specific Transaction: You need someone to handle a single, specific transaction on your behalf while you are unavailable (e.g., you’re out of the country and need someone to sign a real estate document). As long as you are certain you will remain capable of making decisions, a General POA for that limited purpose is used.
- Convenience, Not Incapacity Planning: You simply want someone to have the authority to handle certain matters for your convenience, and you have no concerns about potential incapacity. This is a risky approach, as incapacity can occur unexpectedly.
Even in these limited scenarios, a carefully drafted Durable Power of Attorney, with specific limitations on powers if desired, is almost always a safer and more comprehensive option.
Conclusion
Choosing between a Durable and General Power of Attorney in Texas is a critical decision within your estate planning. While both grant authority to an agent, the Durable Power of Attorney’s enduring nature protects against incapacity. It offers far superior protection.
For most individuals, the Durable Power of Attorney is a clear choice, ensuring seamless management of affairs, avoiding guardianship, and providing invaluable peace of mind. Always tailor the document, to fit with the overall goals.
Other Related Articles:
- How to Get Guardianship of a Child in Texas: A Complete Guide
- Does Texas Recognize Out of State Guardianship? A Step-by-Step Guide
- What is Required for Legal Guardianship in Texas? A Complete Guide
- Can You File for Guardianship Without a Lawyer in Texas?
- A Texas Guide to Adult Guardianship for Families
- How Long Does Temporary Guardianship Last in Texas
- How Much Does Guardianship Cost in Texas? The Price of Protection
- Step-by-Step Guide: How to Apply For Legal Guardianship in Texas
- How to Get Guardianship of a Parent in Texas: A Comprehensive Guide
- How to Get Legal Guardianship of a Grandchild in Texas: A Step-by-Step Guide
FAQs
This is the crucial distinction. A General Power of Attorney automatically terminates if the principal (the person granting the power) becomes incapacitated. A Durable Power of Attorney, on the other hand, remains in effect even if the principal becomes incapacitated. This is because it contains specific language required by Texas law that makes it “durable.”
Technically, it is permitted, but it’s almost always unnecessary and potentially confusing. A properly drafted Durable Power of Attorney can encompass all the powers of a General Power of Attorney, plus the crucial benefit of remaining valid during incapacity. Having both documents creates the risk of conflicting instructions and ambiguity, so it is not recommended.
Keep your signed, original Power of Attorney in a safe yet accessible place. Inform your designated agent and any successor agents of its location. A fireproof, waterproof safe or a safe deposit box are good choices. Do not put it somewhere only accessible after your incapacity, as that defeats the purpose. A copy should be available from your agent.
No, your agent, under a Texas Power of Attorney, is not required to be a resident of Texas. However, choosing someone relatively close geographically can be more practical for handling day-to-day affairs. The most important factors are that you trust your agent implicitly and that they can fulfil the responsibilities.
A general power of attorney is effective immediately upon proper execution and notarization. A durable power of attorney can also be effective immediately, or it can be made “springing,” meaning it only becomes effective upon the occurrence of a specific event – usually your incapacity.
