Wills and Power of Attorneys-What are the requirements according to Texas law? Keep reading to find out!

You probably already know that a Last Will and Testament is a legal document allowing you to name your beneficiaries and legal guardian for your minor children. In short, a will helps dictate how your personal property will be distributed after you die. Every state has requirements that dictate what makes a will valid. Texas laws are straightforward. The person making the will must have legal capacity, testamentary capacity, and testamentary intent. There are additional formalities that must be followed:

Legal Capacity

Legal capacity is a term that means that the person writing the will meets one of the following basic requirements:

  • at least 18 years old
  • lawfully married
  • a member of the U.S. Armed Forces

Testamentary Capacity

To make a valid will in Texas, the testator must be of “sound mind.” Testamentary capacity means that you have the mental ability to understand the process and its results.

Testamentary Intent

The term “testamentary intent” means that you are intentionally writing a document dictating how your property will be distributed after you die.

Power of Attorney

A “power of attorney” is a written legal document that authorizes someone to make decisions or take actions on someone else's behalf. Also known as the Agent and the Principal.

A "general power of attorney" is a document that grants the agent very broad rights to act on behalf of the principal and last for a period of time.

A general power of attorney ends:

  • After a time period specified in the document
  • Once a specified task has been accomplished
  • When the principal dies
  • When the principal is deemed to be incapacitated
  • When the power of attorney is revoked by the principal

Why would I need one?

A power of attorney can be used to allow someone to act on your behalf for various reasons.

General powers of attorney can be used in business to allow an employee to participate in a contract, sell property, spend money, and take other actions on behalf of a client. However, a general power of attorney is not sustainable for medical directives or end-of-life arrangements because general POAs end once the principal is incapacitated. Instead consider a medical power of attorney or durable power of attorney for these cases.

A medical power of attorney gives someone else the right to make decisions about medical care on their behalf and continues on after the principal is deemed incapacitated. This type of POA allows an agent to make decisions on your behalf should you develop the inability to make “sound mind” decisions. It is typically created during end of life planning or those with disabilities, but it is not limited to these situations.

A medical POA lasts after the principal has been incapacitated. The POA ends when:

  • The power of attorney is revoked;
  • The principal is determined to be competent again; or
  • The expiration date of the power of attorney arrives

In the event that you do not have a medical POA, the following persons may be able to make decisions on your behalf, but the law only allows these people to consent to certain medical treatments:

  • patient's spouse
  • an adult child of the patient who has the waiver and consent of all other qualified adult children of the patient to act as the sole decision-maker
  • a majority of the patient's reasonably available adult children
  • the patient's parents
  • the individual clearly identified to act for the patient by the patient before the patient became incapacitated, the patient's nearest living relative, or a member of the clergy

When you plan with Wilson Law, you can rest easy knowing that all Texas Last Will and Testaments and Power of Attorneys obey the letter of the law. Our founder’s guiding principle was to care for the legal needs of his clients – just as he would care for the legal needs of his own family. Whether you have an existing documentation that needs to be changed or are starting from scratch, contact Wilson Law in San Antonio to schedule a free consultation.


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