What is a Durable Power of Attorney?

What is a Durable Power of Attorney? A durable power of attorney is a written document that creates a relationship between the person granting authority (the principal) and the person to whom authority is granted (the agent, or attorney-in-fact). When the principal signs a durable power of attorney, he or she is authorizing another person to engage in specific business on his or her behalf—whether financial or legal. This power of attorney is known as a durable power of attorney because it does not terminate upon the principal’s incapacity. In the state of Texas, for a durable power of attorney to be legal and effective, it:

• Must be signed by an adult;
• Must name an agent or attorney in fact;
• Must expressly state that the authority given to the agent must either begin at signing or upon the incapacity of the principal, and
• Must be properly acknowledged.

There are no witness signatures necessary on a durable power of attorney unless the agent will use the durable power of attorney for real property transactions. A durable power of attorney may take effect when it is executed, or it may “spring” into effect upon the incapacity of the principal or when another specified event occurs. A springing durable power of attorney may have the incapacity which would trigger the document clearly defined—if it is not clearly defined, then it will require a physician’s certification of incapacity. Unless a time limit is specified, a durable power of attorney does not lapse.