Although many people have heard the term “power of attorney,” most do not fully understand what it means. A power of attorney allows someone to designate another person to make either medical or financial decisions for them in the event that they are not capable of making those decisions themselves. While a power of attorney can still be effective if someone is unconscious or incapacitated, it ceases to be effective as soon as they die.
The Texas Legislature has created two different types of powers of attorney: 1) Medical Power of Attorney, and 2) Statutory Durable Power of Attorney. The forms for both of these documents are created by the Legislature, but they must be understood and executed correctly to be effective.
Medical Power of Attorney....
The Medical Power of Attorney form allows you to designate a family member or friend to make medical decisions for you in the event that you are not able to do so. The Medical Power of Attorney does not become effective until such time as you require medical care but cannot make decisions for yourself. The person you designate to make these decisions is known as the “agent,” and the agent has broad authority to make medical decisions, unless you specifically restrict his authority.
The Medical Power of Attorney must be signed by the person granting the power, by two witnesses, and by a notary public. A copy should be provided to your regular doctors, as well as to hospital staff, if you are having a planned surgery. Ford+Bergner generally recommends to its clients that they provide a copy of the Medical Power of Attorney to the people named in the document so that they are aware of the responsibility they have been given.
Statutory Durable Power of Attorney....
The Statutory Durable Power of Attorney allows you to designate someone to make financial decisions for you in the event that you are unable to do so for yourself. Like the Medical Power of Attorney, the Durable Power of Attorney is a form created by the Texas Legislature and is effective even after you are incapacitated. However, the Durable Power of Attorney ceases to be effective upon your death.
The Durable Power of Attorney allows the designated agent to make a wide range of financial decisions, unless you have specifically restricted that authority. If unrestricted, the agent can pay bills, buy or sell real estate, buy or sell investments, pay your taxes, etc.
The biggest reason for creating powers of attorney is to avoid the necessity for a court-ordered guardianship in the event that you suddenly become incapacitated. As you will see elsewhere on our site, Guardianships can be difficult, time consuming, and costly for all who are involved. By creating powers of attorney, you are designating someone to make medical and financial decisions for you when you are not capable of making those decisions. Because you have granted this right to those designated in the Powers, you can avoid the necessity for the guardianship.