You’ve heard of a Durable Power of Attorney and a Medical Power of Attorney, but do you know how these simple documents can save you thousands of dollars?
Your next car wreck
Cruising down your neighborhood street with your best friend, the unexpected happens. An intersection collision sends another vehicle thundering into the passenger side of your car. Glass shatters, and in the chaos, your friend, buckled up but crumpled like a discarded soda can, fades into unconsciousness. Darkness descends.
Fast forward to a hospital room where your only company is the popcorn ceiling above. Immobilized and unable to speak, you’re conscious but trapped within your own body. While your family rejoices at your survival, your inability to communicate thrusts them into a legal maze.
To pay bills, access bank accounts, and make crucial medical decisions, they must initiate a lengthy legal process to gain guardianship over you that will cost several thousands of dollars.
Yet, this predicament could have been avoided with a simple document – a power of attorney.
What Exactly Is a Power of Attorney?
A power of attorney, in general, is a form that allows another individual to make decisions on your behalf. A power of attorney can grant several powers to another individual and it is extremely important that you know which one(s) you are granting you as each power works differently.
Today, we’re discussing the Medical Power of Attorney and the Statutory Durable Power of Attorney. Just as with other estate planning documents, these should be done while your mind and body are in good health.
After you’ve become incapacitated in the car accident described above, it’s too late.
Medical Power of Attorney
A Medical Power of Attorney is a document signed by a competent adult, called a “principal,” in which the principal designates another individual, called an “agent,” to make any health care decision on the principal’s behalf that the principal could make if the principal were competent.
– See Definitions – Tex. Health & Safety Code § 166.151
A Medical Power of Attorney becomes effective immediately upon execution and remains in effect indefinitely unless revoked or unless an expiration date is placed on it. However, even though it is effective immediately, the agent doesn’t immediately have authority to act.
An agent may exercise authority only if the principal’s attending physician certifies in writing and files the certification in the principal’s medical record that, based on the attending physician’s reasonable medical judgment, the principal is incompetent.
– See Scope and Duration of Authority – Tex. Health & Safety Code § 166.152
Durable Power of Attorney
A Durable Power of Attorney is a document which authorizes another individual to make financial, legal, and business decisions on behalf of the principal. A Durable Power of Attorney can take effect immediately or may “spring” into effect upon the principal’s incapacity.
If the power of attorney is intended to immediately take effect and to remain effective in the event of the principal’s incapacity, it must contain the language “This power of attorney is not affected by subsequent disability or incapacity of the principal.”
—See Definition of Durable Power of Attorney – Tex. Est. Code § 751.001
Authority Under a Power of Attorney
In Texas, an agent may not act under a medical power of attorney unless your physician has certified in writing that you are incompetent. The written certification must be filed in your medical record.
An agent may then make any healthcare decision the principal could make if they were able to make such decisions. Under a medical power of attorney, your agent can look at your medical records and consult with your doctor to make informed medical decisions on your behalf
—See Scope and Duration of Authority—Tex. Health & Safety Code § 166.152
Under a durable power of attorney, you do NOT be considered incompetent before an agent may act on your behalf.
An agent acting under the durable power of attorney is, however, considered a fiduciary under the law, and therefore has a duty to inform and account to you in writing for all actions taken under the power of attorney.
The agent acts until you die, the agent is released by you, no matter if you’re competent to do so, or by a court in a guardianship proceeding.
Texas law places one limitation on an agent under a medical power of attorney, however: no treatment may be given or withheld if you, the principal objects, regardless of your competence or the existence of a power of attorney.
—See Scope and Duration of Authority —Tex. Health & Safety Code § 166.152
A medical power of attorney is effective indefinitely on execution and delivery of the document to the agent unless it is revoked by an act of specific intent by you to your agent or licensed healthcare provider.
An act of revocation by you can occur without consideration of your competency at the moment you revoke the medical power of attorney.
—See Scope of Duration of Authority —Tex. Health & Safety Code § 166.152(g)
Are There Any Legal Requirements to Execute a Power of Attorney?
A medical power of attorney must be signed by the principal in the presence of two witnesses. The witnesses must also sign the document. If witnesses are unavailable, the principal may have the medical power of attorney notarized.
—See Form of Medical Power of Attorney —Tex. Health & Safety Code § 166.164
A durable power of attorney must be in writing, signed by the principal and be acknowledged before a notary public. No witnesses are necessary on a durable power of attorney, however.
—See Legal Sufficiency of Statutory Durable Power of Attorney – Tex. Est. Code § 751.004
Where Should I Start?
Always start by speaking to your Estate Planning attorney. Ask them any questions you may have and let them know you want to be protected when the time comes that you can no longer make decisions for yourself.
Our legislators have set out exactly what a Medical Power of Attorney can include. Reviewing this form ahead of meeting with an estate planning attorney will help you prepare to communicate your wishes to the attorney.
– See Form of Medical Power of Attorney – Tex. Health & Safety Code § 166.164
Our legislators have set out exactly what a Statutory Durable Power of Attorney can include. Reviewing this form ahead of meeting with an Estate Planning Attorney will help you prepare to communicate your wishes more clearly.
– See Form of Statutory Durable Power of Attorney – Tex. Estates Code § 752.051
Then consider who you would most trust to make those decisions for you. Talk with that person, let them know your wishes and desires, and ensure that they are willing to carry out your financial, medical, and even emotional wishes in the role of agent while you are living. Have your attorney prepare the documents and execute them according to the rules above.
Your Estate Planning Attorney can customize a Medical Power of Attorney and Durable Power of Attorney to meet your individual needs. More importantly, your Estate Planning Attorney can help you prevent potentially expensive or even harmful errors in filling out these vitally important documents.
Knowing you have thought long and hard about your future and that you are protected if the unthinkable happens is the peace of mind you and your loved ones deserve.
–Authored by Amanda E. Carter, Esq.
Matthew Harris Law, PLLC – Estate Management Division
1101 Broadway, Lubbock, Texas, 79401
Tel: (806) 702-4852 | Fax: (800) 985-9479