Powers of Attorney


Estate Planning Series Continues

Welcome to entry #6 of our series—Estate Planning 101. Today we’re discussing Durable and Medical Powers of Attorney.

If you will recall from Estate Planning 101, a Power of Attorney is used to designate an individual to make medical, personal, and financial decisions on your behalf when necessary.

I’m Not Ready For This…

As many of you know from caring for your aging parents, no one is ever “ready” for that day when memory escapes you. That day when you know that age has taken its toll and you can no longer do the things you used to; that day when you can no longer make sound decisions for yourself.

This can be especially hard to deal with when Alzheimer’s or dementia are to blame.

Although we cannot prepare for the emotional rollercoaster this can cause, we can prepare for the legal ramifications that can arise. There are several documents every individual should have in their arsenal for “that day.”

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 a number of powers to another individual and it is extremely important that you know which one(s) you are implementing as they each work differently.

Today, we’re discussing the most prevalent of the Powers of Attorney: the Medical Power of Attorney and the Durable Power of Attorney. Just as with other estate planning documents, these should be done while your mind is in good health before you become incapacitated.

Medical Power of Attorney

A Medical Power of Attorney is a document signed by a competent adult, or “principal”, in which the principal designates an “agent” to make any health care decision on the principal’s behalf that the principal could make if she were competent.

The 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.

—See Scope and Duration of Authority—Tex. Health & Safety Code § 166.152

Our legislators have set out exactly what this form should look like, which is why this is also sometimes called a Statutory Medical Power of Attorney.

—See Form of Medical Power of Attorney—Tex. Health & Safety Code § 166.164

Durable Power of Attorney

A Durable Power of Attorney on the other hand is a document which authorizes an agent 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 § 751.002

Our legislators have set out exactly what this form should look like, which is why this is also sometimes called a Statutory Durable Power of Attorney.

—See Form Durable Power of Attorney—Tex. Est. Code § 752.051

Authority Under a Power of Attorney

In Texas, an agent may not act under a medical power of attorney unless the principal’s attending physician has certified in writing that the principal is incompetent. The written certification must be filed in the principal’s medical record. An agent may then make any healthcare decision the principal could make if they were competent.

—See Scope and Duration of Authority—Tex. Health & Safety Code § 166.152

The statute places one restriction on a medical power of attorney, however: no treatment may be given or withheld if the principal objects, regardless of the principal’s competence or the existence of a power of attorney.

Under a durable power of attorney, a principal need not be considered incompetent before an agent may act on their 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 the Principal for all actions taken under the power of attorney. The agent further must keep records of all actions they take until they are released by the principal or discharged by a court.

—See Fiduciary Duties; Duty to Timely Inform Principal; Maintenance of Records—Tex. Est. Code §§ 751.101-751.103

Are There Any Legal Requirements?

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 Execution—Tex. Health & Safety Code § 166.153

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 Definition of Durable Power of Attorney – Tex. Est. Code § 751.002

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 if and when the time comes that you can no longer make decisions for yourself.

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 comfortable serving in that role. Have your attorney prepare the documents and execute them according to the rules above.

Then live your life knowing you have thought long and hard about your future and knowing that you are protected if the unthinkable happens.

–Authored by Kayla R. Wimberley, Esq.,


Matthew Harris Law, PLLC – Estate Management Division

1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309

Tel: (806) 702-4852 | Fax: (800) 985-9479

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