Question:  What is a Statutory Durable Power of Attorney?

Answer:   A Statutory Durable Power of Attorney allows you to designate a third party individual as your “attorney in fact” or agent to handle your property and financial matters. Texas Probate Code Chapter 12, § 490. The agent appointed has a duty to inform, account to the principal, and stands as a fiduciary with regard to the principal. Id at § 489B. Although the statutes say that the form set forth in Section 490 of the Probate Code is not exclusive, banks and financial institutions are familiar with this form and are more likely to comply with your client’s request if you track this language pretty closely.
The Durable Power of Attorney need not be witnessed, but must be notarized. It may be drafted to be effective now or drafted to be effective upon the disability or incapacity of the principal. Id at 490. The logic behind possessing this document demands that the agent named be a trustworthy individual. Generally as a convenience, the powers should be made effective immediately and not affected by the subsequent disability or incapacity of the principal.

The other alternative, drafting the power of attorney to become effective upon the disability or incapacity of the principal, sets up another hurdle for you to scale before property and financial matters may be addressed. Additionally, for elderly clients, attorneys are loathe to require a physician to certify in writing, based on the physician’s medical examination of the principal, that he or she is mentally incapable of managing financial affairs. Id. However, the statutes contemplate the alternatives of immediate effectiveness or effectiveness upon disability for our clients.

This document is one part of a set of documents to specify your wishes with regard to your medical care.