Power of Attorney While Incarcerated.

Incarceration does not prevent a person from granting power of attorney to a third party. In fact, a power of attorney (POA) is an important tool that can provide the individual under incarceration with greater peace of mind and ease of mind regarding their financial, property, and healthcare matters while they are confined. While incarceration does not limit a person’s ability to grant a POA, the use of the POA is subject to state and federal law, as well as the specific conditions of your confinement.

The basic structure of a POA is that the principal grants authority to another party, and the agent (or attorney-in-fact) exercises the authority granted to them under the provisions of the document. In the context of a person under incarceration, the person under incarceration is the principal, and the individual appointed to assist them is the agent.

When is a Power of Attorney Used During Incarceration?

While in jail or prison, many decisions and transactions are either irrelevant or must be managed by others. A power of attorney is a valid way to allow another individual to make these decisions for the incarcerated person. A power of attorney can be used to allow another individual to:

• Make financial decisions, including accessing accounts and managing financial obligations;
• Facilitate financial transactions; and
• Manage property.

What Types of Power of Attorney are Available?

Depending on the circumstances, different types of power of attorney may be available.

• Limited Power of Attorney: This limits the scope of the agent’s authority. The principal can limit the agent’s authority to specific matters (e.g., limited to the sale of real estate), or the principal can limit the agent’s authority to a specific time period (e.g., the date of the principal’s incarceration through a certain date).
• Durable Power of Attorney: This allows the agent’s authority to continue after the principal becomes incapacitated. A regular power of attorney terminates upon the principal’s incapacity. However, a durable power of attorney remains in effect regardless of the principal’s capacity. While individuals under incarceration typically retain their legal capacity to manage their affairs, unanticipated health or mental health issues could limit their capacity, and a durable power of attorney ensures that their finances can still be managed.
• Texas Medical Power of Attorney: In Texas, medical powers of attorney are governed by the Texas Health and Safety Code. A medical power of attorney allows a principal to delegate authority to another individual to make treatment decisions once the principal becomes incapacitated.

What Must an Incarcerated Signer Arrange Before a Power of Attorney Can Be Executed?

The authority and extent of a person’s power of attorney depend on whether the POA was executed in accordance with all state and federal requirements. As a result, an incarcerated signer must carefully review the applicable execution requirements and ensure that they are able to meet these requirements under the specific circumstances of their confinement. For example, in Texas:

• In Texas, a durable power of attorney is valid if its execution complies with Texas Estates Code Section 751.0021(a), and a statutory durable power of attorney is legally sufficient if its form is properly completed and the principal’s signature is acknowledged.
• In Texas, the execution requirements for a durable power of attorney are governed principally by Texas Estates Code Chapter 751, not Section 1101.001.
• In Texas, the principal must understand the significance of the action being taken under a POA. Although this is not listed in the statute as a requirement for execution, it is a requirement for the agent or the party receiving the signer’s signature to notarize the document.

What Requirements Must be Met in Order to Execute a Power of Attorney in a Texas Correctional Facility?

If you are being incarcerated in a federal correctional facility in Texas, these state-law requirements must be met in addition to the federal requirements. Federal law may permit certain federal prison officials to acknowledge signatures or administer oaths under applicable authority, but 18 U.S.C. § 3740 is not such an authority. However, correctional facilities maintain their own attorney-visitor rules and procedures as well. If you wish to execute a power of attorney while being incarcerated, you need to ensure that the relevant facility will allow your attorney to visit you. An incarcerated person can request to have their attorney visit them, and once again, they must ensure that the visitation is in compliance with the facility’s rules and procedures.

If you are thinking about executing a power of attorney while incarcerated, you should consult with an experienced estate planning lawyer. An estate planning lawyer can explain all of the relevant requirements, help you determine the type of power of attorney you need, and work with you to determine your next steps. Estate planning attorneys can assist incarcerated individuals by:

• Educating incarcerated individuals regarding their legal rights;
• Providing advice regarding estate planning; and
• Drafting documents that are compliant with state law.

The first consultation is free and confidential, and it runs as long as your questions do.

Which Powers Can an Incarcerated Principal Give an Agent, and Which Should Stay Limited?

An incarcerated principal has a wide variety of options when it comes to the powers they can delegate to an agent. In general, if an action does not require the person’s presence, then that is an action that could be delegated under a power of attorney. Examples of actions that can be delegated include:

• Withdrawing money;
• Paying bills;
• Filing taxes;
• Selling real property;
• Paying the taxes on real property;
• Managing business interests;
• Working out a bankruptcy; and,
• Purchasing insurance coverage for real property.

What Are the Different Types of Powers of Attorney Recognized in Texas?

Texas recognizes all major types of powers of attorney, and each of these has different scopes of authority. The main types of powers of attorney in Texas are:

• General Powers of Attorney;
• Limited Powers of Attorney;
• Durable Powers of Attorney;
• Springing Powers of Attorney; and,
• Medical Powers of Attorney.

How are Incarceration-Related Powers of Attorney Different From Traditional Powers of Attorney?

For example, an incarcerated individual can choose to grant a general power of attorney, but that could give their agent broad authority over all aspects of their life. Or, that individual can choose to grant a limited power of attorney, which gives the agent limited authority over their principal’s affairs.

Likewise, a statutory durable power of attorney allows the agent to have broad authority over his or her principal’s affairs, whereas a springing power of attorney becomes effective upon the contingency specified in the document, such as the principal’s incapacity. A statutory durable power of attorney can be executed immediately, but under Texas law, a power of attorney can also be written to only become effective when the agent’s principal is incapacitated.

Even if the incarcerated individual wishes to give the agent all authority over their affairs, the power of attorney still needs to be written carefully. For instance, a power of attorney that is executed because of the principal’s incarceration may need to have an expiration date. The principal can specify the date of their expected release. Additionally, once the principal is released, the power of attorney should lapse.

Why Should Inmates Limit an Agent’s Powers?

The principal has a lot of discretion as to what authority they want to grant to the agent. While an inmate can grant broad or even unlimited authority to their agent, the individual can limit the scope of the powers delegated to that agent. For example, the individual can limit the scope of the agent’s authority to financial transactions. The reason for this is simple: it is better to grant too little authority than too much authority, particularly when granting authority to individuals who are not immediate family members.

When Will Texas Institutions Accept, Reject, or End an Incarcerated Principal’s Power of Attorney?

Once a power of attorney has been drafted, signed, and notarized, it may be used to achieve various purposes. For example, in Texas:

• Real estate power of attorney: Under Texas Estates Code § 751.151, a durable power of attorney for a real-property transaction requiring execution and delivery of a recordable instrument must be recorded in the county where the property is located not later than the 30th day after the instrument is filed for recording.
• Property power of attorney: A legal description is not a general validity requirement for every Texas power of attorney; recording rules apply to specified real-property transactions under Texas Estates Code § 751.151.

When Will a Texas Power of Attorney Expire?

There are several ways a power of attorney in Texas can expire.

• Expiration date: A power of attorney may contain a specific expiration date. For example, a power of attorney granted by an incarcerated individual could expire on the date of the principal’s release from custody.
• Revocation: A principal may revoke a power of attorney at any time. However, to revoke, the principal must have the legal capacity to revoke his or her power of attorney. A principal who has been adjudged incapacitated cannot revoke their power of attorney.
• Incapacity: A power of attorney that is not durable expires when the principal becomes incapacitated.
• Guardianship: A power of attorney expires when a court-appointed guardian is appointed.
• Death: A power of attorney expires upon the principal’s death.

How Do I Revoke a Texas Power of Attorney?

To revoke a Texas power of attorney, the principal must make sure that the revocation is communicated to their agent. In many cases, they must also communicate their revocation to third parties. For example, if you are revoking the power of attorney your agent has to access bank accounts on your behalf, you must notify the bank to which the agent presented your power of attorney.

How Much Time Do Third Parties Have to Accept or Reject a Texas Power of Attorney?

Once an agent receives the power of attorney, they will present it to a third party. In many cases, the third party will want to determine if it is valid. Under Texas law, unless a statutory ground for refusal exists, a person presented with a durable power of attorney generally must accept it or, not later than the 10th business day after presentation, request an agent’s certification or an opinion of counsel, subject to statutory exceptions.

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