“We have powers of attorney” is the sentence Texas families say right before discovering what powers of attorney do not cover.
The document is essential. It is also narrower than its reputation. The Texas statutory durable power of attorney form carries a notice, in capital letters, telling you exactly one of its limits: it does not authorize anyone to make medical or health care decisions for you. That is the limit people know about. There are five more.
What a Durable Power of Attorney Actually Does
Under the Texas Durable Power of Attorney Act, a durable power of attorney lets an agent act on your behalf in property and financial matters, and it survives your later incapacity. Depending on the powers granted, that can cover banking, real property, investments, insurance, retirement accounts, taxes, litigation, business interests, and government benefits.
It also comes with enforcement teeth that many families never use. Under Estates Code Chapter 751, Subchapter E, a person presented with a valid durable power of attorney must generally accept it, request an agent’s certification or opinion of counsel within set business-day deadlines, or deliver a written statement explaining the refusal. A refusal without proper grounds can support a cause of action, and courts may award attorney’s fees.
Everything above is real. None of it touches the six gaps below.
The Six Gaps and What Closes Them
| Gap | What the DPOA does not do | Document that closes it |
| Medical decisions | No authority over treatment | Medical power of attorney |
| Health information | No right to your records | HIPAA authorization |
| End-of-life wishes | Does not state your wishes | Directive to physicians |
| Psychiatric treatment | Does not cover psychoactive medication or convulsive treatment | Declaration for mental health treatment |
| Trust assets | Agent cannot manage what the trust owns | Revocable trust with disability provisions |
| Online accounts | Custodians may refuse access | Digital asset authority under Estates Code Ch. 2001 |
Medical Decisions
A separate medical power of attorney under Chapter 166 of the Texas Health and Safety Code names an agent to make health care decisions once a physician determines you cannot. Texas restricts who may witness the signing, disqualifying your health care provider, an employee of a residential care facility where you live, relatives by blood or marriage, anyone entitled to part of your estate, and anyone with a claim against your estate. Two neutral witnesses or a notary solves it.
Access to Health Information
Deciding and knowing are separate legal problems. A medical power of attorney may sit dormant until a physician makes a capacity determination, and in the meantime nobody can get information. A standalone HIPAA authorization naming everyone who should be able to receive information, including people who are not agents, prevents weeks of frustration for a cost of essentially nothing.
End-of-Life Wishes
A directive to physicians states what you want, rather than who decides. Without it, an agent is left guessing, and family members argue about what you would have wanted. With it, the agent has instructions to follow and cover when a relative disagrees.
Psychiatric Treatment
This is the gap almost no Texas plan addresses. A declaration for mental health treatment under Civil Practice and Remedies Code Chapter 137 covers a defined category: convulsive treatment, treatment with psychoactive medication, and emergency mental health treatment. It can be signed before two witnesses or acknowledged before a notary, and it is valid for three years unless the principal is incapacitated when it would otherwise expire.
It matters for dementia because behavioral symptoms are frequently treated with psychoactive medication, and families often have strong feelings about that after the fact rather than before.
Assets Held in a Trust
An agent under a power of attorney has authority over your property. Property owned by your trust is not, technically, your property. The successor trustee provisions in the trust document control it.
This is where plans quietly fail. A trust signed years ago, with a house and brokerage account never retitled into it, leaves an agent unable to act on trust assets and a trustee with no assets to manage. Funding is not paperwork cleanup. It is the step that makes the plan operate. See trusts and our comparison of revocable and irrevocable trusts in Texas.
Digital Accounts
Texas adopted the Revised Uniform Fiduciary Access to Digital Assets Act as Chapter 2001 of the Estates Code, effective September 1, 2017. The order of authority is worth knowing, because it surprises people.
A provider’s own online tool comes first. If Google’s Inactive Account Manager or Facebook’s legacy contact has been configured, that setting controls. Your will, trust, or power of attorney comes second, and only if it grants digital asset authority. The platform’s terms of service come last.
Practical translation: set the online tools, and make sure your documents contain digital asset language. A list of passwords in a drawer is not legal authority and may violate the terms of service your fiduciary is trying to work within.
The Timing Problem Nobody Warns You About
Texas allows a power of attorney to take effect immediately or to “spring” into effect on a later determination of incapacity. Springing sounds safer. In practice it introduces a delay exactly when speed matters, because the agent must first produce whatever proof of incapacity the document requires, and institutions vary wildly in what they will accept.
Most Texas elder law practitioners favor immediate effectiveness paired with careful agent selection and controlled delivery of the original. The safeguard should be who you name, not a trigger mechanism that stalls the document when it is finally needed.
Where Incapacity Plans Fail in Practice
Four failure modes account for most of the trouble this firm sees.
The stale document. A power of attorney signed in 2004 predates the 2017 acceptance provisions and often lacks the specific authority modern institutions look for. Banks reject old forms routinely, and the statutory protections work best with a current, well-drafted document.
The unfunded trust. Covered above, and it is the most common single defect in an otherwise good plan.
No successor named. A single agent with no backup means one death, one illness, or one relocation collapses the whole structure. Name successors, and name them two deep.
Nobody can find anything. Originals in a safe deposit box that only the incapacitated person can access is a genuine and recurring problem. Tell your agents where the documents are and give the medical documents to your physician now.
The Part That Is Not Paperwork
Incapacity planning also involves decisions no document makes for you.
How the care will be paid for, which is a long-term care planning conversation about insurance, private funds, and eventual Medicaid eligibility under Texas’s 60-month look-back. Who runs a business you own, if you own one. What happens to a family member who depends on you, which may call for special needs planning. And a letter of instruction covering the things statutes ignore: the pets, the accounts nobody knows about, the preferences that make daily life tolerable.
Review the Plan on a Schedule
Documents do not expire, but they do age out of usefulness. Review after any move to another state, marriage, divorce, or death of a named agent; after a significant change in assets; after a diagnosis; and otherwise every three to five years.
Your Legacy Legal Care® builds and reviews incapacity plans for families across Clear Lake, Katy, the Galleria, Bay City, and greater Houston, on a flat fee basis, and we re-review client documents regularly so they stay current.
Call or schedule a strategy session online. If you would rather start on your own, the firm’s estate planning assessment is a reasonable first look at where the gaps are.
This article is for general information and is not legal advice. Contacting Your Legacy Legal Care® does not create an attorney-client relationship.
Author Bio
Kim Hegwood
Managing Attorney
Kim Hegwood is the Founder and Managing Attorney of Your Legacy Legal Care®, a Houston-based estate planning and elder law firm she established in 1998. A graduate of South Texas College of Law, Kim was inspired to focus her practice on elder law and estate planning after watching her own grandparents struggle with the challenges of aging. With nearly 30 years of experience, she helps families with wills, trusts, powers of attorney, Medicaid planning, and asset protection.
Kim is a Certified Dementia Practitioner and a member of the National Academy of Elder Law Attorneys, and her firm has been named Best Trust & Estate Law Firm by the Houston Chronicle. A mother of three, she spends her free time with her children and grandchildren and volunteers with several local charities.
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