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Varieties of Powers of Attorney

Dear Mr. Premack: Does a power of attorney have to be notarized in order for it to be valid? – CRM

Your question is deceptively simple because you say “power of attorney.” There are a variety of legal instruments which can be classified as powers of attorney. Let me cover the options and in the process answer your question.

All powers of attorney are based on common law of agency and on statutes about agency. A principal (the person granting power) appoints an agent (the person who will exercise the power). Under common law, the agent’s authority can be exercised only while the principal has capacity to undertake the same action. If Tom names Sue as his agent and authorizes her to access his bank account, and then Tom is rendered unconscious in a car accident, under the common law of agency Sue loses authority to act for Tom. If he can’t do something for himself, his agent cannot do it either. This can be called a “Regular” Power of Attorney.

This legal limit inherent in a Regular Power of Attorney is undesirable in most situations. The Texas legislature became aware of the limit, and years ago passed a statute allowing the principal to create a “Durable” Power of Attorney. It must recite that the power of attorney continues to be valid even if the principal becomes incapacitated. If Tom has named Sue as agent under a Durable Power of Attorney, her authority continues while he is incapacitated. Her authority only ends when Tom revokes the power of attorney, when Tom dies, or if a court appoints a Guardian for Tom.

You should have a Durable Power of Attorney, not a Regular Power of Attorney. Durable powers can be made in a variety of ways:

  1. They can be limited or general. A limited power of attorney gives the agent limited authority (“you can sell my car on Tuesday”). A general power of attorney is open-ended (“you can undertake any action that I could perform”).

  2. They can be springing or immediate. A springing power of attorney goes into effect only after the principal becomes incapacitated and proof of that incapacity (usually a doctor’s letter) is obtained. An immediate power of attorney goes into effect the day it is executed by the principal.

  3. They can be statutory or non-statutory. A statutory power of attorney incorporates all of the provisions set out in Chapter XII of the Texas Probate Code, and a non-statutory does not incorporate those provisions. Using the statutory provisions is vital, but is not enough. Experienced attorneys add a variety of provisions to expand the agent’s powers beyond those the legislature listed over 20 years ago.

Any of those Durable Powers of Attorney must, by law, be signed and acknowledged by the principal in the presence of a notary. The notary must sign and seal the document before it is legally valid.

One special variety of statutory power of attorney is a “Designation of Agent for Disposition of Remains.” By Texas law, this document takes effect at the moment of the principal’s death and allows the agent to handle funeral arrangements. This document is advisable when there are conflicts in the family or when cremation is desired. To be effective, the designation of agent must be signed and acknowledged by the principal in the presence of a notary.

The Medical Power of Attorney is another special variety.  These are durable, are limited to medical care, and (since they are based on a completely different law) can either be signed in the presence of two disinterested witnesses or signed in the presence of a notary, who must then sign and seal the document.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, July 9, 2013


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