Power of Attorney

Three Scenarios When You May Need a Power of Attorney

Published on: October 14, 2024 | By David W. Miller

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By definition, power of attorney is a legal document that gives one individual authorization to work on another individual’s behalf. This authorization can extend to financial decisions, medical decisions, or (if the document provides for it) all decisions pertaining to a person’s wellbeing. On today’s blog, we review three situations in which you may need a power of attorney, as well as why it is important to include in any basic will or estate plan.

Scenario #1: You Become Incapacitated and Need to Make Medical Decisions

If you become physically incapacitated and you are unable to make decisions on your own behalf, someone else will have to step in for you. Without a power of attorney, any person (including a spouse) would have to go through a court to gain explicit permission to make decisions for you. By executing a power of attorney, though, you can name who you would like to decide things about your health such as whether doctors should resuscitate you, what kind of medicine you want to receive, and how long you would want to exist in a vegetative state. While these situations are often unpleasant to think about, it is important to plan ahead of time for their possible occurrence.

Importantly, this kind of power of attorney only kicks in when you are truly incapacitated, i.e. you are unable to make any decisions at all. It does not apply when all that is happening is that the people in your life disagree with the decisions you are making.

Important Power of Attorney FAQs

Published on: September 15, 2024 | By McCulloch & Miller, PLLC

Power of attorney is an important part of any estate plan that individuals tend to overlook. To cover some of the power of attorney basics, today’s blog focuses on the most frequently asked questions on the topic. With specific questions about how power of attorney applies to you or to learn more, we recommend that you contact a Houston estate planning attorney today.

What is Power of Attorney?

Power of attorney is a legal document that allows another person to act on your behalf. The document creates a relationship between the person appointed (the agent) and the person signing over the right to act in certain situations (the principal).

What Makes a Power of Attorney Legally Valid in Texas?

To create a power of attorney, there are several legal requirements. These include: signing the document in front of a notary public, being at least 18 years old, and having decision-making capacity when you sign the document. Without these requirements, the power of attorney may not be legally valid and may not hold up in court.

Types of Power of Attorney in Texas

Published on: March 13, 2024 | By Thomas W. McCulloch

A power of attorney is a binding legal document that gives an individual the power to make decisions on your behalf. In Texas, there are five basic types of powers of attorney, all of which we will review on today’s blog. By understanding all of the types and their various functions, you can be better prepared to appoint a power of attorney that works best for you.

The Five Types of Powers of Attorney

General power of attorney: this type of power of attorney is the most basic one, in that it gives general, broad power for the individual you choose to act on your behalf. General power of attorney lasts until you, the person giving the power, become either incapacitated or disabled.

Limited power of attorney: when giving limited power of attorney, you authorize a person to act on your behalf only with regards to a specific situation. The power of attorney does not extend to matters beyond what you explicitly name in your document.

Planning for Incapacity in Texas: How to Prepare for the Unexpected

Published on: October 19, 2023 | By Thomas W. McCulloch

At McCulloch & Miller, we know all too well that the best strategy in estate planning and elder law is, without a doubt, planning ahead. One of the biggest difficulties that adults in Texas face is figuring out how to overcome legal barriers that could have been avoided with proper preparation. Specifically, planning for eventual incapacity can be helpful when thinking about what is best for you and your family in the future.

What is the Definition of “Incapacity” in Texas?

Under the law in Texas, a person is incapacitated when he or she is either a minor or an adult who is unable to provide for his or her basic needs, physical health, or financial affairs. Oftentimes, to meet this definition, the individual’s treating physician must sign a notarized document that confirms the patient is incapacitated.

How Do I Plan for Incapacity?

Of course, we can never know if or when we will become incapacitated. In order to prepare and have a plan in place just in case of the worst, many of our clients elect to appoint a power of attorney. This individual is someone who can make decisions on the incapacitated person’s behalf, whether those decisions revolve around finances or medical decisions.

Should I Put My Children in Charge of Everything as I Age?

Published on: September 22, 2023 | By David W. Miller

Should I Put My Children in Charge of Everything as I Age?

As parents grow older, it is natural for families to experience a shift as children begin taking on more of a caretaking role. This shift can be a delicate process, and we have many clients come to us, asking whether it is wise to put their children in charge of their finances, estate, and affairs as they age. Today, we talk through some of the intricacies of this approach, recognizing that a different strategy will likely work for every family.

Power of Attorney

One way in which many parents give their children more responsibility is by making them “power of attorney,” authorizing their children to make decisions on their behalf. In Texas, a power of attorney can only act on behalf of an individual when explicitly authorized to do so.

Financially speaking, a power of attorney can manage a person’s business dealings if the individual wants someone else to take care of these dealings for them. In contrast, a medical power of attorney only becomes effective when an individual becomes incapacitated, allowing the power of attorney to make medical decisions in the individual’s best interest. Texas also offers the option of appointing a “limited power of attorney,” which allows individuals to appoint a power of attorney for one particular action, like purchasing a vehicle or handling tax-related matters.

Estate Planning Basics: How to Revoke a Texas Power of Attorney

Published on: August 6, 2023 | By David W. Miller

Estate Planning Basics: How to Revoke a Texas Power of Attorney

In the past, we have covered power of attorney on our estate planning blog, reviewing when it might be appropriate to have someone step in to make medical decisions on your behalf. As discussed, the concept of “power of attorney” allows another individual to make decisions on your behalf. The individual will only be able to make decisions for you, however, if you are both incapacitated and declared incapacitated by your doctor.

There are times when individuals want to revoke the power of attorney they have assigned, such as when the power of attorney is not performing his or her duties diligently when there are signs of elder abuse, or when there is another person that might be better suited for the job. Today, we review this process and clarify the steps necessary to revoke a Texas power of attorney.

What Steps Are Required in Texas to Revoke a Power of Attorney?

There are several possible avenues you can take if you would like to take away power of attorney from an individual you’ve previously assigned to the role. As long as you are physically and mentally able to revoke the position, you can complete these steps at any time.

How Can You Give Another Person the Ability to Make Medical Decisions on Your Behalf?

Published on: July 24, 2023 | By McCulloch & Miller, PLLC

How Can You Give Another Person the Ability to Make Medical Decisions on Your Behalf?

Planning for emergencies is a key part of thinking through your long-term care needs. Importantly, naming an individual to make medical decisions on your behalf, in the event of your inability to make decisions for yourself, is a good way to ensure that you have a solid plan in place in case of the worst. In today’s blog, we discuss medical power of attorney and how it might be helpful for you.

What Is “Medical Power of Attorney”?

In Texas, you can appoint an individual as your “medical power of attorney.” This means that if you are incapacitated, the person you have appointed can make medical decisions on your behalf. The individual will only be able to make decisions if you are both incapacitated and declared incapacitated by your physician. If you have even a slight ability to make decisions for yourself, your medical power of attorney will not be able to step in. Additionally, once you regain competency, the medical power of attorney automatically loses his or her ability to make decisions on your behalf.

Why Name a Medical Power of Attorney?

Many clients who are married ask us why they should name a medical power of attorney in the first place. According to Texas law, if you are married and you become incapacitated, your spouse is the first person in line to make decisions on your behalf.

10 Common Power of Attorney Questions

Published on: October 24, 2022 | By Thomas W. McCulloch

There are many types of powers of attorney (POA), and each covers different areas and has different purposes. Read on for answers to common questions about POA.

Can I Use a POA After the Principal Dies?

No. The person who gives the power of attorney is called the principal, and the person given the power is often called the agent. A valid power of attorney expires after the death of the principal, so the agent cannot act under the POA after the principal’s death.

If I am an Agent of a POA, Can I Stop the Principal from Giving Money Away?

Only financial—or durable—POAs allows the agent to make financial decisions for the principal. In this case, agents can be given the power to make gifting or donating decisions for the principal. But the agent also owes a fiduciary duty to the principal to act in the principal’s best interests. If stopping the principal from gifting or donating is contrary to the principal’s best interests, it may be possible for the principal or a third party to revoke the POA.

What Can I Do As a POA?

Medical POAs are authorized to make medical and treatment decisions for the principal. Financial or durable POA are authorized to make a wide range of financial decisions, including buying or selling property or assets, applying for benefits, managing a business, investing, or filing lawsuits on the principal’s behalf.

How the COVID-19 Pandemic Has Texans Reevaluating Their Estate Plans

Published on: December 30, 2021 | By McCulloch & Miller, PLLC

The COVID-19 pandemic has impacted every aspect of life. From health concerns to mental well-being, people approach everyday life—and their future—differently than they did prior to March of 2020. Because of these changes, people are considering their goals and how to secure the financial security of loved ones in case they were to get sick. This can all be accomplished through estate planning. By creating health care and financial-related documents as part of an estate plan, Texans can ensure their affairs are in order before the need arises. Below are a few types of documents that all individuals should include in their estate plan, along with descriptions for why these directives are necessary.

Advance Health Care Directive and Medical Power of Attorney

An advance health care directive is a legal document that details the type of medical care an individual wants to receive if they are incapacitated and cannot make the choice for themselves. When crafting this document and deciding on the level of care a person would want, it is important to take into account one’s family medical history and potential treatments they would not want. The more detail an individual provides in their advance health care directive, the better.

Should I Include a Power of Attorney in My Houston Estate Plan?

Published on: December 23, 2020 | By McCulloch & Miller, PLLC

Most individuals have heard of a power of attorney but are unaware of what a power of attorney actually is. In short, a power of attorney gives another person the ability to act on another’s behalf, either for a temporary or permanent amount of time. There are different types of powers of attorneys, each of which is utilized for different purposes. Below are some common questions about power of attorney documents and why they are critical Houston estate planning documents.

What Is a Power of Attorney, and Are There Different Types of Powers of Attorney?

A power of attorney is a legal document that authorizes a designated individual – the agent – to take action on behalf of another, called the principal. There are different types of power of attorneys. Depending on the purpose of designating a power of attorney, the principal may give the agent very broad power or limit their authority to a single purpose or transaction. For instance, a special power of attorney is utilized for a single occurrence, such as when a person wants to buy a house but cannot attend the closing.