Articles Posted in Power of Attorney

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.

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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.

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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.

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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.

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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.

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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.

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.

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In these uncertain times, it’s more important than ever to have your legal, financial and medical ducks in a row. Sadly, when serious illness strikes it is usually quite rapid and often unexpected. In these times, however, we do have forewarning that we are all at risk of contracting COVID-19, the coronavirus.

If you have not yet named someone with Medical Power of Attorney, stop procrastinating and get this crucial planning in place now.

What is a Medical Power of Attorney?

12.4.19It’s easy to focus most of the estate planning attention on the will and distribution of assets. However, a power of attorney is often as important as a will.

Naming a person to take on the role of Power of Attorney is not easy. For some families, it can hang up the entire estate planning process.

Forbes’ article, “9 Things You Need To Know About Power Of Attorney,” reminds us that it’s an important decision and not one that should be taken lightly. Let’s look at what you need to know to get your POA right.

11.4.19The durable power of attorney is a means of naming a person who can represent another in all legal and financial matters, while they are alive and well, as well as when they are incapacitated. It is a legal document that needs careful consideration.

The power of attorney gives a representative or an agent the legal right to conduct financial affairs for another individual. A healthcare power of attorney gives an agent the ability to make medical decisions for another person. Both can be crafted by an estate planning attorney to give complete and wide-ranging decision making powers, or to be more targeted.

The Aitken (SC) Standard’s recent article, “The durable power of attorney,” explains that there are three different types of powers of attorney: nondurable, springing and durable.

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