Houston Estate Planning and Elder Law Attorney Blog
A power of attorney is one of the most important — and most overlooked — documents in a Texas estate plan. It allows you to designate a trusted person to make financial or medical decisions on your behalf if you become unable to make them yourself. Without a valid power of attorney in place, your family may need to pursue a court-supervised guardianship in Dallas County, Harris County, or wherever you reside — a process that is far more expensive, time-consuming, and invasive than executing these documents while you are still able to.
McCulloch & Miller, PLLC helps families in Dallas, Houston, and across Texas prepare durable powers of attorney and medical powers of attorney as part of a comprehensive estate plan. The firm’s attorneys have over 35 years of experience drafting these documents under the Texas Estates Code and the Texas Civil Practice and Remedies Code, ensuring they are properly executed and will be accepted when they are needed most.
What Is a Durable Power of Attorney in Texas?
A durable power of attorney is a legal document that grants another person — called your “agent” or “attorney-in-fact” — the authority to handle financial and legal matters on your behalf. The word “durable” means the document remains effective even if you become mentally incapacitated. Without the durability provision, a standard power of attorney terminates the moment the principal loses capacity — precisely when it is needed most.
Under the Texas Estates Code § 751.001 et seq., a durable power of attorney can grant broad authority over your financial affairs, including managing bank accounts, paying bills, filing tax returns, buying or selling real property, managing investments, and handling insurance matters. Alternatively, the document can be drafted to grant limited authority over specific transactions or for a defined period of time.
Texas provides a statutory form for durable powers of attorney, but many estate planning attorneys customize the document to address the principal’s specific assets and circumstances. A customized power of attorney is more likely to be accepted by financial institutions and can include safeguards that the statutory form omits.
What Is a Medical Power of Attorney in Texas?
A medical power of attorney — governed by the Texas Health and Safety Code § 166.152 — designates an agent to make healthcare decisions on your behalf if you are unable to communicate your own wishes. This includes decisions about medical treatment, surgery, hospitalization, medication, and end-of-life care.
The medical power of attorney is separate from a durable (financial) power of attorney. Each document serves a different purpose, and most estate planning attorneys in Texas recommend executing both. Together, they ensure that someone you trust has the legal authority to manage both your finances and your medical care if you are incapacitated.
A medical power of attorney is often paired with a directive to physicians (commonly called a “living will”), which states your preferences for end-of-life treatment — such as whether you want life-sustaining measures to be continued or withdrawn under certain circumstances. While a medical power of attorney authorizes your agent to make decisions, a directive to physicians provides guidance on what those decisions should be.
Why Is a Power of Attorney Critical for Texas Families?
Without a valid power of attorney, no one has automatic legal authority to manage your finances or make your medical decisions — not even your spouse, your adult children, or your parents. If you become incapacitated without these documents, your family must petition a Texas court for guardianship.
Guardianship proceedings involve filing an application, providing medical evidence of incapacity, attending court hearings, and often hiring a court-appointed attorney ad litem. In Dallas County and Harris County, guardianship cases can take months to resolve and cost thousands of dollars. Once a guardian is appointed, they must file annual reports with the court and seek court approval for significant financial decisions — an ongoing burden that a durable power of attorney would have avoided entirely.
For families in Dallas and across North Texas, a Texas elder law attorney can explain how powers of attorney fit into a broader incapacity plan that protects both the individual and their family.
How Do You Create a Valid Power of Attorney in Texas?
Texas law imposes specific requirements for a valid power of attorney. The document must be signed by the principal (the person granting authority), and the principal must have legal capacity at the time of signing — meaning they must understand what they are signing and the consequences of doing so.
A durable power of attorney must be signed before a notary public. A medical power of attorney must be signed before two competent adult witnesses, at least one of whom cannot be the designated agent, a healthcare provider, or an employee of the principal’s healthcare facility.
Once executed, the principal should provide copies to the designated agent, their financial institutions, and their healthcare providers. Some institutions — particularly banks and brokerage firms — have their own acceptance procedures, and providing the documents in advance can prevent delays when they are needed.
Can a Power of Attorney Be Revoked?
Yes. A principal can revoke a power of attorney at any time, as long as they have legal capacity. Revocation should be in writing and delivered to the agent and any third parties who have relied on the document. Creating a new power of attorney that expressly revokes all prior versions is the cleanest approach.
A power of attorney also terminates automatically upon the principal’s death. At that point, the executor named in the will — or an administrator appointed by the probate court — takes over authority to manage the decedent’s affairs.
Frequently Asked Questions
Does a power of attorney need to be filed with the county in Texas?
Generally, no. A power of attorney does not need to be recorded with the county clerk to be valid. However, if the agent will be using the power of attorney to buy, sell, or transfer real property, the document should be recorded in the county where the property is located to provide constructive notice of the agent’s authority.
Can a bank refuse to accept a power of attorney in Texas?
Texas law (Texas Estates Code § 751.201 et seq.) provides protections that require financial institutions to accept a validly executed statutory or customized durable power of attorney, subject to certain exceptions. If a bank refuses without a legitimate basis, the agent may petition the court to order acceptance. Some institutions have internal review periods, which is why presenting the document in advance can help.
What is the difference between a power of attorney and a guardian?
A power of attorney is a voluntary document created by a competent individual to designate an agent. Guardianship is a court-imposed arrangement for someone who has already lost capacity without having executed planning documents. A power of attorney is private, less expensive, and gives the principal control over who serves. Guardianship involves court supervision, ongoing reporting requirements, and significantly higher costs.
Talk to a Dallas or Houston Estate Planning Attorney
Powers of attorney are essential documents that protect your family and your assets in the event of incapacity. The attorneys at McCulloch & Miller, PLLC draft durable and medical powers of attorney as part of comprehensive estate plans for families in Dallas, Houston, and throughout Texas. Partner David Miller brings a financial sector background that strengthens planning for clients with complex financial portfolios, while the firm offers flat fee options and over 35 years of estate planning experience.
Call (713) 333-8900 or schedule a consultation online to discuss your estate plan.
This article is for informational purposes only and does not constitute legal advice. Every situation is different — consult with a qualified attorney to discuss your specific circumstances.