- Why do I need a durable power of attorney?
If you become disabled due to an accident or illness and you are deemed mentally incompetent, your business and personal affairs will more than likely have to be administered by a court-appointed guardian. The guardian may or may not be someone whom you would have chosen to attend to your needs. In fact, he may be a complete stranger! Plus, a guardianship can be expensive. The guardian will have to post a bond equal in value to your estate, and the premium for this bond will have to be paid out of your estate. The guardian will have to go to Court for permission to transact virtually any type of business transaction and he will have to demonstrate to the Court why the action which he desires to take is necessary and desirable. The guardian will also have to file annual accountings. Guardianships, then, are expensive, time-consuming and cumbersome; a very inefficient way to take care of your business and your personal needs when disability occurs.
The solution to this problem is the Durable Power of Attorney. With a valid, well-written Durable Power of Attorney your business and personal needs can be taken care of in an efficient manner at minimal expense.
- What can a durable power of attorney do for me?
It permits you to appoint someone to manage your affairs. The person you have designated in your Durable Power of Attorney can be given the power to manage your assets which could include such things as to:
- Write checks on your bank account and make deposits
- Pay your bills
- Have access to your safe deposit box
- Sign your tax return
- Make important decisions about your retirement plans – IRA’s (eg: Rollover decisions)
- Make important decisions about your insurance (eg: borrow against the cash surrender value of a life insurance policy)
- Buy or sell stocks, bonds, mutual funds and other securities
- Buy or sell real estate; enter into, terminate or modify lease agreements
- Continue to operate or windup your business (pay employee’s salaries, etc.)
The person you have designated in your Durable Power of Attorney can be given the power to arrange for your personal needs which could include such things as to:
- Provide for you a residence (nursing home; private residence, etc.)
- Provide you with nursing care (employ nurses & physicians, etc.)
- Provide for your recreational needs (arrange for travel, etc.)
- Provide for the care and custody of your personal effects
- Provide arrangements for the care and custody of your pets
- Make pre-arranged funeral plans
- Provide for your religious needs consistent with your beliefs
- Take custody of your important personal papers (Will; Insurance papers; Certificates of Deposit; Stock certificates)
- Have access to your medical records
- Who can I designate to act for me under a durable power of attorney?
The person that you name (your “attorney in fact” or “agent”) can be any person capable of transaction business. He or she need not be a licensed attorney at law. Quite often a person who is married will name his or her spouse as the “attorney in fact” and , if the spouse for whatever reason can not serve, an adult child is named as the alternate. The person you name should be someone in whom you have complete trust and confidence.
- Can my “agent” or “attorney in fact” make medical treatment decisions for me?
No. Medical treatment decisions are governed by another type of power of attorney called a “Medical Power of Attorney.”
- Does the durable power o attorney have to be recorded?
Although the Durable Power of Attorney must be notarized and it can be recorded at the County Clerk’s office, it does not have to be recorded to be effective. However, if real estate transactions are undertaken by the attorney in fact, the Durable Power of Attorney will need to be recorded in the County Clerk’s office of the County where the land is located.
- Can I have a durable power of attorney that does not become effective unless and until I become incompetent?
Yes. Texas law permits a Durable Power of Attorney to be a “springing” power of attorney which does not become effective unless and until you become incompetent.
- Once I give the durable power of attorney-what happens if I later change my mind?
If you recorded the power of attorney, you may revoke the Durable Power of Attorney at any time by recording a Notice of Revocation with the Country Clerk where you filed it. In any case, it would also be important to notify the attorney in fact and any third parties who had been dealing with your attorney in fact that you had revoked the Durable Power of Attorney.
- Where can I get a durable power of attorney?
Our office can prepare this document for you at a very reasonable cost.
- Where should I keep my durable power of attorney?
It should be kept where you keep your most important papers.
- Medical Power of AttorneyThe Texas Legislature passed a law permitting you to sign a Medical Power of Attorney. This medical power of attorney allows you to designate someone else, who is called your “agent” to make health care decisions if you become incapable of making those decisions. Your agent could be your spouse or some other adult in whom you have confidence.What are some examples of health care decisions which might need to be made if I become incapable of making them? Practically any kind of medical diagnostic or treatment decision could be made. Examples would include the decisions as to whether or not to consent to surgery or whether or not to use chemotherapy. The enabling legislation defines “Health Care or Treatment Decision” as “consent, refusal to consent, or withdrawal of consent to health care, treatment, service, or procedure to maintain, diagnose or treat an individual’s physical or mental condition”. Your agent also would have the power, unless you stated otherwise, to make decisions about withdrawing or withholding life-sustaining treatment.
- Are there any restrictions or limitations on my agent?
Yes. First, your agent cannot act at all unless and until your attending physician certifies in writing that you lack the capacity to make health care decisions for yourself. Secondly, if you object to your agent’s decisions and your physician knows of your objection, your physician must not implement the treatment specified by your agent. Finally, your agent, in making decisions for you is required to make them according to his knowledge of your wishes including your religious and moral beliefs. And in any event, your agent may not consent to: voluntary inpatient mental health service; convulsive treatment; psychosurgery; abortion; or the omission of care intended for your comfort.Several technical requirements must be met for the Medical Power of Attorney to be effective. There are restrictions as to who can serve as your agent. For example, your physician could not be your agent. Before signing the Medical Power of Attorney you must sign a Disclosure Statement. Your signature on the Medical Power of Attorney must be witnessed by two (2) persons who must meet certain criteria.
- Once I sign the medical power of attorney, can I change my mind?
Yes. The law allows you to revoke it at any time.
- What about the living will – doesn’t the medical power of attorney overlap with my living will?
Perhaps it may, but not necessarily. The “Living Will” (Advanced Directive under the “Advanced Directives Act”) is a document which you sign that directs your physician not to use life support systems if you have been diagnosed as having a terminal condition and where death is imminent. However, the Medical Power of Attorney is designed to permit your agent to make health care decisions whether or not you are suffering from a terminal condition.Perhaps a person is suffering from Alzheimer’s Disease, but death is not imminent. In this case the Living Will would not apply. Nevertheless, health care decisions would need to be made, and the Medical Power of Attorney would allow the agent to make those decisions.
- I already have a durable power of attorney, won’t that be sufficient?
No. The “regular” durable power of attorney is primarily designed to enable someone else to make decisions about property; not to make health care decisions. Furthermore, the Legislature has specifically prescribed the only method for creating a Medical Power of Attorney. The Legislature has also specified the particular type of Disclosure Statement that must be executed in order for it to be valid.
What if my question isn’t answered here?
Contact us at the Law Office of Gregory Ross, P.C. and we will try to help you.
The information contained in this page is intended neither as legal advice, nor to create an attorney-client relationship.