A Caretaker’s Guide to Power of Attorney: Essential Legal Protection for Immigrant Families in Texas

Ashley Juárez

Staff Editor (2024-2025)

In the first week of his second term, President Donald Trump signed ten executive orders on immigration, fulfilling his campaign promises of mass deportations and validating the fears that immigrant communities had long expressed.¹ As the administration implements their policies, courts and civil rights advocates across the country are pushing back.² Most recently, the Supreme Court’s decision in Noem v. Abrego Garcia ordered the administration to “facilitate” the return of Kilmar Armando Abrego Garcia, an immigrant father who was sent to El Salvador and remains in custody there.³ Immigration policies remain up in the air: while courts review Trump’s executive orders, his administration is advancing new initiatives, including plans to expand family detention centers and expediting deportation processes.⁴ This rapid evolution of policies in January alone has created uncertainty for many immigrant families as they fear mass deportations and expedited removal programs.

In response to this uncertainty, nonprofits and advocates across the country have mobilized to educate immigrant communities about their constitutional rights during encounters with Immigration and Customs Enforcement (ICE) agents.⁵ These “Know Your Rights” workshops help spread awareness to immigrant communities, many of which are unable to afford legal counsel.⁶ Equally critical is the need for immigrant caretakers to establish legal safeguards for their children before any potential family separation occurs. This article provides immigrant caretakers with two practical tools: (1) a safety plan checklist to protect their children's immediate well-being, and (2) a step-by-step guide to creating and executing a Statutory Durable Power of Attorney (“Power of Attorney”)—a legal document that ensures trusted individuals can make crucial decisions for children if their parents become unavailable.

What should I include in my Safety Plan Checklist?

As a caretaker, the following is a list of items that you can do without the need for an attorney:⁷

• Identify emergency contacts and memorize their phone numbers.

• Provide your child’s school or daycare with an emergency contact to pick up your child.

• Make sure your loved ones know they can use ICE’s online detainee locator to find you if you are detained: https://locator.ice.gov/odls/#/search.⁸

• Keep your identity information and financial information in a safe location.

• Make sure your emergency contact can access all your documents.

• Ask for copies of everything you sign.

What is a “Power of Attorney”?

A Power of Attorney is a legal document that allows an individual (the “principal”) to designate another person (the “agent”) to act on the principal’s behalf in financial, medical, and legal matters.⁹ In Texas, a Power of Attorney remains effective even if the principal becomes incapacitated.¹⁰ The document may define “incapacity” to include a forced separation through deportation where a parent is unable to make the important decisions for their children.¹¹

Therefore, immigrant parents can use a Power of Attorney to designate a trusted family member or friend who will have the authority to make crucial decisions if deportation forces family separation.

What happens if you are deported without having created a Power of Attorney?

 Without an established Power of Attorney, caregivers face significant obstacles in making essential decisions for children of deported parents. Appointing a legal guardian without a Power of Attorney is often a costly and lengthy process.¹² Beyond the delays caused by court proceedings, the caretaker faces complex legal requirements, including proving that guardianship serves the child’s best interests, notifying all potential caregivers, and potentially being required to testify in court proceedings.¹³ The caretaker will need an attorney to help navigate this process, which can leave children in an uncertain legal situation while the court makes its determination.¹⁴

However, a properly executed Power of Attorney, accompanied by a letter expressing the parent’s wishes for custody in case of deportation, gives the caregiver the authority to take immediate action and prevent delays in crucial decisions about the child's education, healthcare, and daily needs.

How do you draft a valid Power of Attorney for your children?

 Any adult who is at least eighteen years old and mentally competent can create a Power of Attorney.¹⁵ The Texas Estates Code requires four essential elements for validity:

(1)       Written Record: The document must be in writing and clearly designate an agent to act on behalf of the parent (the principal), though it need not explicitly use the term “power of attorney.”

(2)       Signed: The parent must sign the document or direct another adult to sign on their behalf.

(3)       Language: The document must include specific language about durability, meaning it remains effective even if the parent becomes unable to act. This can be accomplished by including language from at least one of the following:

• “This Power of Attorney is not affected by subsequent disability or incapacity of the principal.”;

• “This Power of Attorney becomes effective on the disability or incapacity of the principal.”; or

• Similar language that clearly conveys the caretaker’s authority will continue despite the parent's removal.

(4)       Notarized: The document must be acknowledged before a notary public. The document must only be filed for real estate transactions.¹⁶

In some situations, documents created in other states with similar durability provisions may also qualify as valid under Texas law.¹⁷ Because the Power of Attorney does not need to be filed with the county, it is highly recommended to store the document with the caretaker in case it needs to be produced in an emergency.¹⁸

What decisions can caretakers make?

 The Texas statutory Power of Attorney form allows parents to authorize their chosen agent to handle a broad range of decisions crucial for their children’s well-being. While the statutory form lists fourteen categories of authority, parents can customize these powers to meet their family's specific needs.¹⁹ For immigrant families preparing for potential separation, several categories deserve special attention, including: personal and family maintenance powers, financial powers, government benefits, and legal and administrative matters. 

Can you terminate the power of attorney?

 A Power of Attorney will automatically terminate in specific situations: upon the death of either the parent or caretaker, when its specified purpose is completed, on its expiration date (if one exists), or if the agent becomes incapacitated or resigns.²⁰ The document also terminates if a court appoints a permanent guardian.²¹

While parents have the right to revoke the Power of Attorney even after deportation, there are steps the parents would have to take for an effective revocation. The Texas Estates Code does not list a process for revocation; however, keep in mind that a revocation or modified Power of Attorney will not affect third parties who do not have actual knowledge of it.²² Therefore, it is important and necessary for the parent to notify all relevant parties—including schools, healthcare providers, and financial institutions—about the termination of the agent’s authority. If the Power of Attorney has been filed, the parent should file revocations to ensure there are no issues in the future. Maintaining clear documentation and establishing reliable communication channels for potential revocation is essential.

Where can you get help?

 If you’re planning to make these arrangements for your family, it would be beneficial to consult an immigration or family-law attorney to ensure accuracy and comprehensive coverage.

If you are unable to afford legal representation, there are still several options available. Your local bar association can connect you with attorneys who provide pro bono (free) services.²³ Additionally, numerous legal aid organizations in Texas specialize in immigration matters, including American Gateways, Catholic Charities, Border Immigration Law & Justice Center, Justice for All Immigrants, Justice for Our Neighbors North Central Texas, Austin Region Justice for Our Neighbors, and RAICES (Refugee and Immigrant Center for Education and Legal Services).²⁴

Furthermore, foreign consulates offer assistance to their citizens facing legal challenges in the United States. Contact your country’s nearest consulate or embassy to inquire about available resources, legal referrals, or other support services. For example, the Mexican Consulate has developed an app called “Consul App Contigo,” which is designed to provide support during potential immigration enforcement raids.²⁵

Conclusion

Planning ahead for possible family separation is difficult, but it will help protect your children. Having a Power of Attorney ready, along with a safety plan, ensures that people you trust can take care of your children’s needs if you can’t be there. While paperwork and legal documents may seem scary, remember that you have help available. Taking these steps now can help keep your children safe and give you more peace of mind.

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Sources:

[1] Carrie Hoffman et al., President Trump's Inauguration Day Immigration Executive Orders, Mondaq (Jan. 24, 2025), https://www.mondaq.com/unitedstates/general-immigration/1574346/president-trumps-inauguration-day-immigration-executive-orders.

[2] Washington v. Trump, No. C25-0127-JCC, 2025 U.S. Dist. LEXIS 12121, at *3 (W.D. Wash. Jan. 28, 2025) (issuing a temporary restraining order to prohibit enforcement of an executive order that would restrict birthright citizenship protections).

[3] Noem v. Abrego Garcia, No. 24A949, 2025 U.S. Dist. LEXIS 1456, at *5 (U.S. Apr. 10, 2025).

[4] Julia Ainsley, Trump administration preparing to restart immigrant family detention, NBC News (Feb. 7, 2025, 4:36 PM),https://www.nbcnews.com/politics/national-security/trump-administration-preparing-restart-immigrant-family-detention-rcna191230.

[5] Know Your Rights: Prepare For Trump’s Mass Deportation Threats, Nat’l Immigrant Just. Ctr. (Dec. 2024), https://immigrantjustice.org/know-your-rights/mass-deportation-threats.  

[6] Access To Counsel, Nat’l Immigrant Just. Ctr., https://immigrantjustice.org/issues/access-counsel (last visited Apr. 14, 2025).

[7] For a comprehensive list on what you should include in your Safety Plan Checklist, please visit https://www.acluct.org/sites/default/files/field_documents/0918_immigrants_rights_kyr_guide.pdf.

[8] To search for an individual, you will need either their alien registration number (A-Number) or their biographical information (first name, last name, country of birth, and birth date). Online Detainee Locator System, U.S. Immigr. & Customs Enf’t, https://locator.ice.gov/odls/#/search (last visited Apr. 14, 2025).

[9] Powers of Attorney, Tex. State L. Libr., https://guides.sll.texas.gov/powers-of-attorney (last updated Apr. 8, 2025, 4:39 PM).

[10] See Tex. Est. Code Ann. § 751.131.

[11] Tex. Est. Code Ann. § 751.00201 (defining “incapacitated” under a SDPOA: “Unless otherwise defined [in the Power of Attorney], an individual is considered . . . incapacitated . . . if a physician certifies . . . the individual is determined mentally incapable of managing the individual’s financial affairs.”).

[12] Tex. Health & Hum. Servs., A Tex. Guide to Adult Guardianship 3, www.huntcounty.net/upload/page/10448/docs/A%20Texas%20Guide%20to%20Adult%20Guardianships.pdf (last visited Apr. 14, 2025).

[13] Tex. Est. Code Ann. § 1101.151(a); Texas RioGrande Legal Aid, Guardianship, Tex. L. Help, https://texaslawhelp.org/article/guardianship(last updated Sept. 5, 2023, 4:21 PM).

[14] Id.

[15] Tex. Est. Code Ann. § 751.0021(a)(2).

[16] Tex. Est. Code Ann. § 751.0021(a).

[17] Tex. Est. Code Ann. § 751.0021(b).

[18] See Legal Hotline for Texans, Powers of Attorney, Tex. L. Help, https://texaslawhelp.org/article/powers-of-attorney (last updated Jan. 2, 2023).

[19] Tex. Est. Code Ann. §§ 752.051–.052.

[20] Tex. Est. Code Ann. § 751.131.

[21] Tex. Est. Code Ann. § 751.131(6).

[22] Tex. Est. Code Ann. § 751.134.

[23] You can find your Bar Associations across Texas through the Texas State Law Library: https://guides.sll.texas.gov/find-a-lawyer/bar-associations.

[24] You can find local services by using 211 Texas, a database for community-based services. You only need to include a service term and your zip code: https://www.211texas.org/.

[25] Aplicación móvil “ConsulApp Contigo,” Consulado Gen. de Mex. En Bos., https://consulmex.sre.gob.mx/boston/index.php/todos-los-avisos/272-aplicacion-movil-consulapp-contigo (last visited Feb. 9, 2025).