A will speaks only after death. For the years before that, including any period when illness or injury leaves someone unable to manage their own affairs, Texas families rely on two different documents: a durable power of attorney for financial matters and a medical power of attorney for health care decisions. They are governed by different statutes, signed in different ways, and do different jobs.
The Texas Durable Power of Attorney Act is in Subtitle P, Title 2 of the Texas Estates Code. Under Section 751.0021, an instrument is a durable power of attorney if it is a writing or other record that designates an agent and grants that agent authority to act in the principal's place; is signed by an adult principal, or by another adult in the principal's conscious presence at the principal's direction; contains words showing that it is not affected by the principal's later disability or incapacity, or that it becomes effective on disability or incapacity; and is acknowledged before an officer authorized to take acknowledgments to deeds and to administer oaths.
That durability language matters. It is what lets the agent keep acting when the principal can no longer act alone, which is usually the moment the document is needed most. Some powers of attorney take effect immediately, while others become effective only on incapacity. For the second kind, Section 751.00201 provides that, unless the document defines it differently, a person is considered disabled or incapacitated if a physician certifies in writing, at a date later than the document's execution and based on a medical examination, that the person is mentally incapable of managing their financial affairs.
Section 752.051 of the Estates Code provides a statutory durable power of attorney form. The notice at the start of the form warns that the powers it grants are broad and sweeping, and that the document does not authorize anyone to make medical and other health-care decisions. The same notice says that if you want your agent to be able to sign home equity loan documents for you, the power of attorney must be signed at the office of the lender, an attorney at law or a title company. The form also tells the person signing it to select someone they trust as agent.
An agent who accepts the role takes on real duties. Under Section 751.022, a person can accept appointment by exercising authority or performing duties as an agent. Under Section 751.101, an agent who has accepted is a fiduciary as to the principal when acting under the power of attorney, with a duty to inform and to account for actions taken.
Health care decisions are governed by Chapter 166 of the Texas Health and Safety Code. Under Section 166.152, an agent under a medical power of attorney may make any health care decision the principal could make if competent, subject to any limits in the document and to certain limits in the statute itself. The agent may act only after the principal's attending physician has determined in writing, and filed in the medical record, that the principal is incompetent. Even then, treatment may not be given to or withheld from the principal if the principal objects. The agent decides according to the agent's knowledge of the principal's wishes, including religious and moral beliefs, or, if those wishes are unknown, according to the agent's assessment of the principal's interests.
The signing rules differ from the financial document. Section 166.154 requires the principal to sign in the presence of two witnesses, at least one of whom meets the stricter qualifications in Section 166.003, or to sign and have the signature acknowledged before a notary public. Under Section 166.003, that stricter witness cannot be, among others, the person designated to make decisions, a relative by blood or marriage, a person entitled to part of the estate, the attending physician, or an employee of the attending physician.
A medical power of attorney is a different document from a written directive to physicians, often called a living will. Section 166.032 allows a competent adult to execute a written directive at any time, with the same choice between two qualified witnesses and a notary. The two documents can work together.
Under Section 751.131, a durable power of attorney terminates when the principal dies, when the principal revokes it, when the document provides that it terminates, or when its purpose is accomplished, among other events. From that point the estate is handled through the will and the probate process. A medical power of attorney can be revoked under Section 166.155 by oral or written notice to the agent or to the principal's health or residential care provider, by any other act showing a specific intent to revoke, or by signing a new medical power of attorney.
Divorce affects both documents. Section 751.132 ends an agent's authority under a durable power of attorney when the agent's marriage to the principal is dissolved by divorce or annulment or declared void, unless the document provides otherwise, and Section 166.155 applies the same rule to an agent under a medical power of attorney.
The most important decision in either document is the person named. An agent should be trustworthy, organized, reasonably available and willing to serve, and naming a backup helps if the first choice cannot act. The Bowen Law Firm, PLLC lists powers of attorney and healthcare directives among its Houston estate planning services, and an estate planning lawyer can explain how these documents fit together with a will.
This article is general information, not legal advice. Every family's situation is different; for advice about yours, speak with a licensed Texas attorney.