What is a Power of Attorney?

It is a document that gives someone legal authority to act on your behalf. An agent (or attorney-in-fact) has authority to act on the principle’s behalf with a power of attorney.

What are the Different Kinds of Power of Attorney?

In Texas there are several different powers of attorney.

General Power of Attorney grants broad powers to the agent and is the same as the Durable Power of Attorney except that it ends upon the principle’s incapacitation.

Limited or Special Power of Attorney is usually for a specific matter for a limited amount of time.

Durable Power of Attorney is a general power of attorney and continues after the principle becomes mentally and or physically incapacitated. It ends upon principle’s death or a guardian appointment. A Durable Power of Attorney can begin immediately or when the principle becomes incapacitated, which is a Springing Power of Attorney. Proving incapacitation can delay transactions because a physicians affidavit will be required. So an immediate Durable Power of Attorney is preferred over a Springing Power of Attorney.

Springing Power of Attorney is a power of attorney that springs into action only when the principle becomes disabled or incapacitated.

Medical Power of Attorney allows the agent to make medical decisions for the principle if he or she becomes mentally or physically unable to make their own decisions.

A power of attorney must be notarized at the time of signing. The agent must be 18 years or older and the principle must be mentally capable of signing the power of attorney understanding what they are doing. The power of attorney must be filed in the clerk’s office of each county of business if real estate transactions are taking place.

How Do I Revoke a Durable Power of Attorney?

Sec. 751.134. EFFECT ON CERTAIN PERSONS OF TERMINATION OF DURABLE POWER OF ATTORNEY OR AGENT’S AUTHORITY. Termination of an agent’s authority or of a durable power of attorney is not effective as to the agent or another person who, without actual knowledge of the termination, acts in good faith under or in reliance on the power of attorney. An act performed as described by this section, unless otherwise invalid or unenforceable, binds the principal and the principal’s successors in interest.

Another power of attorney will revoke the current one. But in order to be enforceable for 3rd parties to know of the revocation, they will need actual notice of the new power of attorney or revocation.

It is best to prepare a sworn written statement of the revocation and provide it to 3rd parties.

Does a Business Have to Accept my Power of Attorney?

The following statute address acceptance of power of attorney.

Sec. 751.201. ACCEPTANCE OF DURABLE POWER OF ATTORNEY REQUIRED;

EXCEPTIONS. (a) Unless one or more grounds for refusal under Section 751.206 exist, a person who is presented with and asked to accept a durable power of attorney by an agent with authority to act under the power of attorney shall:

(1) accept the power of attorney; or

(2) before accepting the power of attorney:(A) request an agent’s certification under Section 751.203 or an opinion of counsel under Section 751.204 not later than the 10th business day after the date the power of attorney is presented, except as provided by Subsection (c); or (B) if applicable, request an English translation under Section 751.205 not later than the fifth business day after the date the power of attorney is presented, except as provided by Subsection (c).(b) Unless one or more grounds for refusal under Section 751.206 exist and except as provided by Subsection (c), a person who requests:(1) an agent’s certification must accept the durable power of attorney not later than the seventh business day after the date the person receives the requested certification; and(2) an opinion of counsel must accept the durable power of attorney not later than the seventh business day after the date the person receives the requested opinion.(c) An agent presenting a durable power of attorney for acceptance and the person to whom the power of attorney is presented may agree to extend a period prescribed by Subsection (a) or (b).(d) If an English translation of a durable power of attorney is requested as authorized by Subsection (a)(2)(B), the power of attorney is not considered presented for acceptance under Subsection (a) until the date the requestor receives the translation. On and after that date, the power of attorney shall be treated as a power of attorney originally prepared in English for all the purposes of this subchapter.(e) A person is not required to accept a durable power of attorney under this section if the agent refuses to or does not provide a requested certification, opinion of counsel, or English translation under this subchapter.

What Are The Grounds to Refuse my Power of Attorney?

Sec. 751.206. GROUNDS FOR REFUSING ACCEPTANCE.

A person is not required to accept a durable power of attorney under this subchapter if:

(1) the person would not otherwise be required to engage in a transaction with the principal under the same circumstances, including a circumstance in which the agent seeks to:(A) establish a customer relationship with the person under the power of attorney when the principal is not already a customer of the person or expand an existing customer relationship with the person under the power of attorney; or (B) acquire a product or service under the power of attorney that the person does not offer;

(2) the person’s engaging in the transaction with the agent or with the principal under the same circumstances would be inconsistent with:(A) another law of this state or a federal statute, rule, or regulation;(B) a request from a law enforcement agency; or (C) a policy adopted by the person in good faith that is necessary to comply with another law of this state or a federal statute, rule, regulation, regulatory directive, guidance, or executive order applicable to the person;

(3) the person would not engage in a similar transaction with the agent because the person or an affiliate of the person:(A) has filed a suspicious activity report as described by 31 U.S.C. Section 5318(g) with respect to the principal or agent;(B) believes in good faith that the principal or agent has a prior criminal history involving financial crimes; or(C) has had a previous, unsatisfactory business relationship with the agent due to or resulting in:(i) material loss to the person;(ii) financial mismanagement by the agent;(iii) litigation between the person and the agent alleging substantial damages; or(iv) multiple nuisance lawsuits filed by the agent;

(4) the person has actual knowledge of the termination of the agent’s authority or of the power of attorney before an agent’s exercise of authority under the power of attorney;

(5) the agent refuses to comply with a request for a certification, opinion of counsel, or translation under Section 751.201 or, if the agent complies with one or more of those requests, the requestor in good faith is unable to determine the validity of the power of attorney or the agent’s authority to act under the power of attorney because the certification, opinion, or translation is incorrect, incomplete, unclear, limited, qualified, or otherwise deficient in a manner that makes the certification, opinion, or translation ineffective for its intended purpose, as determined in good faith by the requestor;

(6) regardless of whether an agent’s certification, opinion of counsel, or translation has been requested or received by the person under this subchapter, the person believes in good faith that:(A) the power of attorney is not valid;(B) the agent does not have the authority to act as attempted; or(C) the performance of the requested act would violate the terms of:(i) a business entity’s governing documents; or(ii) an agreement affecting a business entity, including how the entity’s business is conducted;

(7) the person commenced, or has actual knowledge that another person commenced, a judicial proceeding to construe the power of attorney or review the agent’s conduct and that proceeding is pending;

(8) the person commenced, or has actual knowledge that another person commenced, a judicial proceeding for which a final determination was made that found:(A) the power of attorney invalid with respect to a purpose for which the power of attorney is being presented for acceptance; or(B) the agent lacked the authority to act in the same manner in which the agent is attempting to act under the power of attorney;

(9) the person makes, has made, or has actual knowledge that another person has made a report to a law enforcement agency or other federal or state agency, including the Department of Family and Protective Services, stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting with or on behalf of the agent;

(10) the person receives conflicting instructions or communications with regard to a matter from co-agents acting under the same power of attorney or from agents acting under different powers of attorney signed by the same principal or another adult acting for the principal as authorized by Section 751.0021, provided that the person may refuse to accept the power of attorney only with respect to that matter; or

(11) the person is not required to accept the durable power of attorney by the law of the jurisdiction that applies in determining the power of attorney’s meaning and effect, or the powers conferred under the durable power of attorney that the agent is attempting to exercise are not included within the scope of activities to which the law of that jurisdiction applies.

Is My Power of Attorney Still Good if I Move to a Different State?

Yes it is still good most likely. But it is best to check with the state to confirm. It is a good idea to update a power of attorney when moving though as it will help refresh your intent of your matters at hand.

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