Durable Power of Attorney
Texas Probate Code § 490 provides the statutory form for designating an agent to perform certain actions regarding your property and finances. This “statutory durable power of attorney” is widely used by estate planning attorneys.
Elder law attorneys typically enlarge the powers granted under a statutory durable power of attorney to allow the agent to respond to issues regularly faced with incapacity, such as authorizing gifts to qualify for Medicaid and protect against Medicaid Estate Recovery.
Medical Power of Attorney and HIPAA Authorization and Release
Texas Health and Safety Code §§ 166.163 and 166.164 provide state promulgated forms for designating an agent to make medical decisions for you in the event you are unable to make such decisions. In completing the form, it is critical that you carefully review the Required Disclosure Statement prior to having it witnessed or notarized.
Federal law requires healthcare providers to maintain their patient’s privacy. Without a duly signed HIPAA release, your medical provider may not be able to release or discuss important medical records with your medical power of attorney.
Directives to Physicians and Family or Surrogates
Texas Health and Safety Code § 166.033 sets forth a statutory form for instructing your healthcare providers regarding life-sustaining treatment in the event you are diagnosed with a terminal or irreversible condition. It is important that your desires are clearly known and understood to avoid disputes between your family members and medical team.
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Q1: What is a power of attorney?
It is often convenient – or even necessary – to have someone else act for you. When you give someone the authority to act for you, you give what is called a power of attorney. If you give a power of attorney, you are called the principal and the person you give it to is called the agent or the attorney-in-fact. only those powers you want to give. The powers given may be very limited or very broad.
Q2: What kinds of things may I authorize an agent to do?
Many things that people do may be done through agents. An agent may be authorized to:
- make health-care decisions for you or your minor children
- buy or sell things
- manage a business
- collect debts
- invest money
- cash checks
- manage financial matters generally
- sue on behalf of the principal
Q3: When does a power of attorney take effect and how long does it last?
A power of attorney can be written either to take effect immediately or to take effect at some time in the future. The future time may be a specific date or may be defined by the occurrence of some event – for example, a certification by your doctor or by some other person of your choice that you are unable to make decisions on your own. A power of attorney can be written to last either for a limited period of time or indefinitely. Your power of attorney ends when you die; so, it is not a substitute for a will. The effect of mental incapacity on a power of attorney is discuss in the next session.
Q4: What is a durable power of attorney?
Unless your power of attorney specifically says otherwise, your agent’s power ends if you become mentally incapacitated. However, a power of attorney may say that it is to remain in effect in the event of future incapacity of the principal. A power of attorney that says this is called a durable power of attorney.
Durable powers of attorney can be written to cover two situations.
- 1. You want the agent to have authority only if you become unable to act for yourself; or
- 2. You want the power of attorney to take effect immediately and to continue in effect if you become incapacitated.
You must specify in the power of attorney document what powers are given to the agent and when those powers are to take effect.
Q5: Is a durable power of attorney an alternative to a guardianship?
Only if it is given before the principal becomes mentally incapacitated. To give a power of attorney, a principal must have the mental capacity to understand what he or she is doing. Once a person has lost that capacity, it is too late for that person to give a power of attorney. At that point, a court will have to appoint a guardian for the incapacitated person, if there is a need.
Q 6: Can a power of attorney be used to make health care decisions?
A: Yes. A power of attorney can be written to include the power to make most health care decisions; but there are some exceptions. A court order is ordinarily needed to authorize certain treatments for someone who cannot personally consent to them. These include amputation, shock therapy, and mental health procedures that restrict a person’s freedom of movement.
A person wishing to give an agent broader authority to make decisions about mental health treatment can do so with a mental health advance directive. Information about mental health advance directives is available from the Mental Health Division of the Department of Social and Health Services at (360) 902-0803 or on the Internet at the following address: www1.dshs.wa.gov/mentalhealth/advdirecti ves.shtml.
If you give an agent the power to make health care decisions for you, it is important to explain how you want the power to be used. It can be helpful to give the explanation in writing, either as part of the power of attorney document or separately. The explanation can be very detailed – for example, “In the event of cardiac arrest, I do not want cardiopulmonary resuscitation (CPR)” – or very general – for example, “I want you to do whatever you think is best for me.”
If you want life-sustaining procedures withheld or withdrawn if death from an incurable, terminal condition is imminent, then it is a good idea to say so in what is called a living will (sometimes also called a directive to physicians or an advance directive).
DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.