In the later stages of life, it becomes important to fully understand how you can guide your loved ones through unexpected and also trying times. This is new territory for everyone who reaches this stage of life. But don’t fret.
There is a well defined path that many have successfully navigated. Our goal is to help you find peace of mind as you begin travel this path.
Especially in the case of aging parents, children need to be aware of the steps they can take to ensure their proper care. This often arises in the case of timely medical decisions, as well as the safeguarding of their parents assets and financial interests.
The best way to accomplish this practical support is through a power of attorney. This is an area of estate planning that many Texans begin to run into detailed questions. It’s also a subject that fosters some difficult and (sometimes uncomfortable) conversations that must take place between parent and child.
How Common is a Power of Attorney in Texas?
Although exact figures fluctuate year to year, legal aid groups and elder-care surveys consistently show that a large share of Texans prepare some form of Power of Attorney.
For example, an AARP national survey found that more than 55% of Americans over age 50 have executed at least one Power of Attorney, and Texas elder-law practitioners estimate similar or slightly higher rates due to the state’s large retirement population.
Medical Powers of Attorney are also one of the most frequently used advance directives in Texas hospitals, often included in pre-admission paperwork. Sharing this context at the outset helps readers see that creating a Power of Attorney is a common, proactive step rather than an unusual legal move.
There are different types of “POA’s,” and the process can become a bit complicated with a parent that is already mentally or physically incapacitated. You’ll need some form of qualified legal counsel to help you learn how to get power of attorney for an aging parent in Texas if this is the situation. But let’s start with situations that are more common and easier to navigate.
So, how do you get a power of attorney?
We’ve organized this otherwise time-consuming research in one place to make things easier for you. Throughout this post, you’ll find a basic primer dealing with how to get power of attorney in Texas, what a power of attorney actually is, and what sort of rights it guarantees.
Read on to get yourself well-prepared for this legal procedure.
How to Get Power of Attorney in Texas?
Before delving into how to get power of attorney in Texas, it’s helpful to have a basic understanding of what a power of attorney actually is. We will discuss this decision in the context of estate planning for a loved one or elderly parent. This is one of the most common reasons people seek durable power, medical power, general power, or Texas limited power in decision-making. (More on these specific types to follow.)
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What is a Power of Attorney?
A power of attorney is a written authorization that gives someone the authority to make decisions on behalf of a loved one that has incapacity to do so, or simply wishes to delegate aspects of their estate plan for other reasons. It’s a very common element of elder law, and something every law office assists with when legal advice on guardianship is sought.
In basic form, your loved one (the principal) is giving you (the agent) the authority to act in certain situations on their behalf when they no longer have the agency or desire to do so.
While health care is often the impetus for such discussions, the scope of the agent’s authority is not limited to this. The boundaries can be limited and specific, but also general and broad.
What Are Power of Attorney Rights and Limitations?
A power of attorney can cover almost everything relating to the life of your loved ones and elderly parents to varying degrees, including (but not limited to):
- Real Estate Transactions
- Financial Decisions
- Gifts
- Asset Management
- Medical and Healthcare Decisions
- Guardianship
In essence, the agent in a power of attorney can make decisions on every major facet of their loved ones life (or principal’s behalf). Because of this, the agent must be chosen with care – it should quite literally be someone that the principal trusts with their life. Especially with a medical POA governing health care.
What Are the Types of Power of Attorney in Texas?
Generally speaking, there are five different types of power of attorney in Texas to be aware of. It’s best to discuss your personal situation with your Ft. Worth estate planning attorney or the law firm drafting your documents. These include:
Limited Power of Attorney – The agent only has the authority to handle a specific matter, or a matter that is time-sensitive.
General Power of Attorney – The agent has the authority to act in a widely encompassing range of matters. This power of attorney ends if the principal becomes mentally or physically disabled or otherwise incapacitated.
Texas Durable Power of Attorney – The same guidelines as a general power of attorney, but this power of attorney continues even if the principal becomes mentally or physically disabled. In Texas, this is referred to as Texas Statutory Durable Power of Attorney.
Springing Power of Attorney – The agent has authority only if and when the principal becomes incapacitated.
Medical Power of Attorney – The agent has authority to make medical decisions for the principal if the principal becomes mentally or physically unable to make the decisions for themselves. In Texas, this is referred to as Texas Medical Power of Attorney. Of course, there are also medicaid asset protections in Texas to also be aware of, and one reason this discussion often arises with the discussion of financial decisions.
Texas Statutes Governing Powers of Attorney
Texas law clearly spells out the different types of Power of Attorney and the requirements for each. The main provisions appear in the Texas Estates Code, Chapter 751 (Durable Powers of Attorney) and Chapter 752 (Statutory Powers), which set out the default powers an agent can exercise. Medical Powers of Attorney are authorized under Chapter 166 of the Texas Health and Safety Code, which prescribes witness or notary requirements and limits on who may serve as an agent in a healthcare context.
Here’s a quick overview:
| Type of Power of Attorney | Authority Granted | When It Becomes Effective / Ends | Texas Law / Notes |
|---|---|---|---|
| Limited Power of Attorney | Agent may act only on a specific matter or for a limited period. | Effective on signing; ends when the stated task or time limit expires. | Governed by general agency law; may be recorded if used for real estate transactions. |
| General Power of Attorney | Agent can act on a broad range of financial or legal matters. | Effective on signing; ends if the principal becomes mentally or physically incapacitated. | Does not survive incapacity unless it meets durable requirements under the Estates Code. |
| Texas Statutory Durable Power of Attorney | Same powers as a general POA but continues during incapacity. | Effective on signing and continues during incapacity unless revoked. | Authorized under Texas Estates Code Chapters 751–752; requires notarization. |
| Springing Power of Attorney | Agent’s authority begins only upon a specified trigger such as incapacity. | Becomes effective when the specified condition is met; ends at revocation or death. | Permitted if clearly drafted; medical certification of incapacity is typically required. |
| Texas Medical Power of Attorney | Agent makes health care decisions when the principal cannot. | Effective only when the principal is unable to make medical decisions; ends at revocation or death. | Authorized under Texas Health & Safety Code Chapter 166; requires two witnesses or a notary. Often discussed with Medicaid asset protection planning. |
How to Get Power of Attorney for an Elderly Parent in Texas
What are the Texas power of attorney requirements? When considering how to get power of attorney in Texas for elderly or aging parents, there are three ways someone can go about it.
The method of obtaining power of attorney will depend on the specific situation you and your parent are faced with. In some cases, your aging parent may have already fallen ill but is still mentally aware of what is going on. In other cases, your parent may already be incapacitated and doesn’t have the ability to make decisions.
The way you resolve each of these needs to be handled with specific care. This is a common area of concern and question, as illustrated by common coverage at organizations like AARP.
How to Create a Power of Attorney for Elderly Parents or Incapacitated Persons (Step-by-Step)
1. Discuss Wishes Early: Talk openly with your parent or loved one while they are still mentally capable about what powers they are willing to grant and to whom. Capacity must exist at the time of signing for the document to be valid.
2. Choose the Right Type of POA: Decide whether a limited, general, statutory durable, springing, or medical Power of Attorney best fits their needs. In Texas, most long-term planning uses the Statutory Durable Power of Attorney and the Medical Power of Attorney.
3. Select a Trustworthy Agent: Pick someone reliable who understands financial or medical issues, can be available when needed, and is willing to act in the principal’s best interest.
4. Use the Correct Form: Texas has an official Statutory Durable Power of Attorney form and a separate Medical Power of Attorney form. These are available from the Texas Health and Human Services Commission and other official state sources.
5. Complete and Review the Form: Fill out all sections carefully, specifying powers granted, effective date (immediate or springing), and any limits. Review with an attorney if there is any uncertainty.
6. Sign and Notarize (or Witness) Properly: The Statutory Durable Power of Attorney must be signed before a notary public. The Medical Power of Attorney must be signed before either two qualified witnesses or a notary. Failing to meet these requirements can invalidate the document.
7. Distribute Copies: Give copies to the agent, backup agents, financial institutions, doctors, and anyone else who needs to rely on the document. Keep the original in a secure but accessible place.
8. Review Periodically: Revisit the document every few years or after major life events (marriage, divorce, moving, change of agent) to confirm it still reflects your wishes.
Common POA Mistakes and Pitfalls to Avoid
Waiting Too Long: If the principal is already incapacitated and cannot understand what they are signing, a Power of Attorney cannot be created. Guardianship may be the only option left.
Choosing the Wrong Agent: Selecting someone who is unreliable, unavailable, or has conflicts of interest can lead to misuse or disputes.
Using Outdated or Non-Texas Forms: Other states’ forms may not be recognized by Texas institutions. Always use Texas-specific forms for durability and medical powers.
Failing to Notarize or Witness Correctly: Missing signatures or improper notarization can render the POA invalid.
Granting Too Broad or Too Vague Powers: Overly broad language can allow an agent to act in ways the principal never intended.
Not Naming a Successor Agent: If your chosen agent can’t serve, the POA may be unusable without a backup named.
Not Updating After Life Changes: Divorce, remarriage, moving to another state, or a change in finances can all make the original POA outdated.
Assuming a POA Covers Everything: Some powers (like certain retirement account transactions or Medicaid asset transfers) may require additional planning or separate documentation.
Three Ways to Obtain Power of Attorney Include:
Parent is of Sound Mind – Your parent must be of sound mind in order to sign over power of attorney to you. This means your parent fully understands the rights and privileges they are about to sign over in the legal document, as well as the kinds of decisions that can be made on their behalf. If these standards are met, the power of attorney can simply be signed over. Your lawyer will assist and advise regarding the notary public, attending physician, and other requirements called for by the Texas estates code.
Living Will – In this situation, your parent may already be incapacitated, but they’ve outlined who they’d like as power of attorney in a living will. If this is the case, nothing further needs to be done. Special note: It’s vital to ensure their will was setup properly before they are incapacitated, and while is adequate time to still make adjustments.
Conservatorship – You’ll need to present yourself before a judge to obtain conservatorship status if your parent is already incapacitated and hasn’t outlined a power of attorney in a living will. This is often time-consuming and you’ll need to deal with the courts. This is why you need to carefully choose an estate planning attorney in Southlake, TX when making these important decisions.
Texas Power of Attorney Forms
The state of Texas provides power of attorney documents online in the Texas statute, or in local libraries. Finding a POA document is quite easy.
However, the verbiage may be confusing and hard to navigate for most – and you will want to ensure you are choosing the right type, as well as understand the implications of this fiduciary duty.
Texas Medical Power of Attorney and Real Estate Transaction Considerations
A health care decision or special power for a real estate closing with a title company are common needs that arise for many Texans.
If you are seeking financial power to assist a loved one, or if their financial institution is requiring this documentation in order for you to fully assist a parent with their accounts, get in touch.
Finding an attorney form online is one thing, but ensuring things are done properly should be your first and foremost concern. Statutory power should not be taken lightly, and can have a lasting impact for years to come.
Next Steps?
The best option to ensure you are choosing the correct type of power of attorney in Texas, whether as a child who wishes to help an elderly parent, or for another purpose altogether is to consult with a legal expert.
Trying to figure out how to get power of attorney document on the Internet can lead to incomplete advice for your specific situation.
We at Thomas Walters, PLLC would be glad to speak with you about your specific situation. Start with a free consultation with our law firm to discuss what is best for you and your family.
