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Financial Powers of Attorney
A durable power of attorney is a written document that creates an agency relationship between the person granting authority and an agent, or attorney-in-fact, the person to whom authority is granted.
By signing a durable power of attorney, you authorize another person to engage in specified business, financial and legal transactions on your behalf. It is called “durable” because it does not terminate if you become disabled or incapacitated.
A medical power of attorney, on the other hand, is a document that allows you to designate a trusted family member or friend to make medical decisions for you in the event you become unconscious or mentally incapable of making those decisions for yourself.
The person you designate to make medical decisions for you is called an agent. The agent is given broad authority to make any health care decisions you could have made if you were not incapacitated, unless you specifically restrict his or her authority.
What does it do?
A medical power of attorney gives someone else the right to make decisions about their medical care on their behalf.
How long does it last?
A medical power of attorney is usually a kind of durable power of attorney - meaning that it will last after the principal has been incapacitated. According to Section 166.152(g) of the Texas Health and Safety Code, it lasts until:
- The power of attorney is revoked;
- The principal is determined to be competent again; or
- The expiration date of the power of attorney, if one is listed.
Why would I need one?
In the event that you cannot make decisions about your own medical care, this document would allow someone you trust to make those decisions for you. It is a common part of later-life planning and legal preparations for people with disabilities.
Note that a medical power of attorney differs from a "living will," which allows you to state what medical procedure you do and do not want performed. For example, a living will would allow you to tell doctors that you do not want to receive a blood transfusion. A medical power of attorney does not discuss specific procedures but instead gives someone else the authority to make decisions about those procedures for you. For more information about living wills and other advanced directives, please see the "Advanced Directives for Medical Care" page of our guide to Wills and Directives.
Texas Law:
Texas Health and Safety Code, Chapter 166
Known as the Texas Advanced Directives Act, this chapter governs how and when three advanced medical directives (directive to physicians, medical powers of attorney, and do not resuscitate orders) may be issued, executed, and revoked.
Understanding the Law:
Medical Power of Attorney: Information and Answers
This page from TexasLawHelp.org explains what a medical power of attorney does and how it might be useful.
Texas Living Wills and Medical Powers of Attorney: What You Need to Know
This article from legal publisher Nolo explains the difference between living wills and medical power of attorneys and the role they play in estate planning.
Forms:
Medical Power of Attorney Form
This form for a medical power of attorney is available from the Department of Health and Human Services in English and in Spanish.
E-File Interview: Estate Planning
eFileTexas's self-help section contains this interactive interview that will help you create completed forms for a durable power of attorney, a medical power of attorney, an advance directive to physicians, a HIPAA medical records release, or all of the above. Select "estate planning" from the list of types of filings.
Directive to Physicians and Family or Surrogates [PDF]
This is a sample form from Texas Law Help for a "living will," formally known as a directive to physicians.
Information Concerning the Medical Power of Attorney (Disclosure Statement) [PDF]
This disclosure statement from the Texas A&M Real Estate Center satisfies the form requirements found in Texas Health & Safety Code 166.164.
End of Life Documents [PDF]
The Texas A&M Real Estate Center has written this article that discusses durable powers of attorney, medical powers of attorney, and other advance directives. The article links to forms throughout.
Planning for the uncertain future is a complex process. Most people believe that drawing up a will is sufficient, but several other documents are necessary to create a comprehensive estate plan that will safeguard a senior’s health and finances.
A reputable elder law attorney can assist with creating a personalized plan, but it is helpful to familiarize yourself with some basic legal forms and documents before estate planning begins.
Definitions of Commonly Used Estate Planning Documents
Will
A last will and testament indicates how a person’s assets (estate) will be distributed among beneficiaries after they pass away. The writer of the will (known as the testator) can also specify an individual (known as the executor or personal representative) to manage the probate process and distribution of the estate. A will does not take effect until the testator dies.
Advance Directives
Advance directives are written instructions and preferences for future medical care in case you are unable to make or communicate decisions (for example, if you are unconscious or mentally incapacitated). These are also called health care directives. There are a few different forms and documents that can be used to articulate one’s health care preferences.
Living Will
Unlike a traditional will explained above, a living will only applies while a person is alive. A living will goes into effect when the person who wrote it is no longer able to communicate their wishes for health care or competent to make such decisions. This document is a type of advance directive that describes how a person wants their emergency care and/or end-of-life care to be managed.
Many people have strong opinions regarding life support, and a living will allows one to specify which life-sustaining procedures one does or does not want. It is important to be specific when composing a living will, but it is not possible to describe preferences for all medical scenarios. Working with a physician and an elder law attorney will ensure that these instructions are clearly articulated and the document meets specific validity requirements in one’s state of residence.
Do Not Resuscitate (DNR) Order
A DNR form is completed by a physician or health care provider stipulating that a patient does not wish to receive life-prolonging treatment if cardiac arrest or respiratory arrest occur. These procedures include CPR, intubation, use of a ventilator, defibrillation and other related methods of resuscitation.
Obtaining a DNR does not affect the provision of other medical treatments or care. DNR forms are typically completed by a physician at a patient’s direct request or in accordance with a patient’s living will or other advance directives. DNRs are often obtained by individuals with a terminal illness, those who are opposed to certain life-saving measures, and those who are at risk of cardiac or respiratory arrest.
Read: What Is a Do-Not-Resuscitate Order and How Does It Work?
Physician Orders for Life-Sustaining Treatment (POLST)
Some states have replaced or supplemented DNR orders with POLST forms. They are very similar, but POLST forms go into further detail regarding specific treatments such as antibiotics and feeding tubes. Like DNR orders, POLST forms are intended to be a condensed version of your living will that medical professionals can quickly and easily consult when deciding on a plan of care.
Read: POLST Programs: When Advance Directives Aren’t Enough
Powers of Attorney
Power of attorney (POA) documents allow a person (the principal) to give a trusted individual (the agent) the ability to make decisions on their behalf. A POA can be written to grant an agent the ability to act in very broad terms or to only take specific actions. This document can also be customized to take effect upon its creation (durable POA) or upon the principal’s incapacitation (springing POA). If a person becomes incapacitated without drawing up POA documents, their family members may have to go through the long and expensive process of seeking guardianship or conservatorship to be able to manage their affairs.
Read: How to Get Guardianship of a Senior
In addition to the various terms that are possible for a POA document, there are two general areas in which powers of attorney are granted: health care and finances.
Health Care Power of Attorney
A health care POA document gives a designated person the authority to make medical decisions on behalf of the principal. A medical POA essentially gives someone you trust the ability to oversee your medical care and ensure that your advance directives are followed if you become incapacitated. Without appointing a POA for health care, your family members may not be able to access your medical information or actively participate in decision making. Medical POA is sometimes referred to as a health care proxy.
Financial Power of Attorney
This type of POA document gives a designated person the authority to make legal and/or financial decisions on behalf of the principal. When someone becomes incapacitated, whether permanently or temporarily, bills and other financial matters do not stop. Without a financial POA, bills may go unpaid and family members may not be able to access accounts to cover health care costs.
The type and extent of an agent’s powers are entirely customizable. For example, the agent may be authorized to manage all of a principal’s finances and property, or they may only be able to oversee certain investments or transactions.
Consult an Elder Law Attorney to Create an Estate Plan
While there are many resources available to help families plan for the future and navigate legal issues, an experienced elder law attorney can learn about your situation and recommend the best course of action. To find a legal professional near you, visit AgingCare’s Elder Law Attorney Directory.