What is a Durable Power of Attorney?

A Medical Durable Power of Attorney Document - Hammerle Finley Law Firm

When individuals think of estate planning, wills and trusts are usually the first things that come to mind, but it is strongly suggested that you also consider creating a durable power of attorney as well. Life, as we well know, is filled with uncertainties. Completely unforeseen circumstances can place an individual in a situation in which they are unable to make or execute key business, personal, legal or financial decisions for themselves. A durable power of attorney addresses these circumstances.

A durable power of attorney allows you, “the principal,” to name your “attorney-in-fact” or “agent” to act in your place in handling your financial matters should you ever become incapacitated. In that situation, the person you have chosen can step in and take care of your financial issues and other important matters. Your attorney-in-fact or agent, however, does not have to be an actual attorney.

Why is the document called a durable power of attorney? The word “durable” simply indicates that the power of attorney remains in effect after the principal becomes mentally incompetent and lacks the ability to make informed decisions, or is incapable of communicating those decisions.

Limited or General?

A power of attorney can be either limited or general. A limited power of attorney gives your attorney-in-fact the authority to do only certain things for you, such as complete a property transaction. In contrast, a general power of attorney is comprehensive and gives your attorney-in-fact all the powers and rights that you have yourself.

Hence, a general, durable power of attorney means that the document remains in effect after you have become incapacitated and gives your attorney-in-fact the authority to carry on all the affairs you once took care of yourself.

Current or Springing?

Most powers of attorney are considered “current,” meaning that they take effect immediately, even if it is understood they will only be used if and when the principal becomes incapacitated. It can also be a “springing” power of attorney that stipulates that the document does not become effective until incapacity takes place. In the case of a springing power of attorney, it is essential that the standards for determining incapacity and initiating the power of attorney be clearly delineated in the document itself.

Medical Power of Attorney and a Living Will

In addition to a durable power of attorney, you might also consider creating a medical power of attorney as part of your estate planning. This document stipulates your wishes for health care if you become too ill or injured to speak for yourself.

When you create a durable medical power of attorney, you name a trusted person to oversee your medical care and make medical decisions for you if you are unable to do so yourself. Your designated health care agent will work with your doctors and other health care providers to make sure you get the kind of medical treatment you desire, and your agent is legally bound to follow your directives to the extent that they know them.

In addition, to make your treatment preferences absolutely clear, you can use an additional health care directive called a “health care declaration” or “living will.” This document will provide specific, written instructions to your health care agent and health care providers telling them what your personal choices are for end-of-life treatment. It lays out the procedures or medications that you want – or don’t want – to prolong your life, if you cannot communicate these wishes yourself.

It should also be noted that while your health care agent does not have to live in Texas, they should be willing and able to travel to your bedside if necessary.

One Agent or Two?

In creating separate powers of attorney, it is perfectly acceptable to name one agent for both documents. If, however, you name two separate agents, make every effort to choose individuals who will work well together.

Legal Requirements for Executing a Power of Attorney

The requirements for completing a power of attorney in Texas include the following.

  • The power of attorney must be signed before a notary public.
  • You must be 18 years of age or older.
  • You must be of sound mind and know what you are doing when you sign the document.
  • If you are entrusting your agent to conduct real estate transactions for you, the power of attorney must be filed with the clerk of each county in which the property is located.

Risk Reduction

A crucial factor in executing any power of attorney is to choose the right person or persons as your agent, and characteristics to be considered in making your choice include loyalty, trustworthiness, dependability, honesty and aptitude. In addition, the manner in which the document is prepared can significantly reduce potential risks. To ensure your finances and personal care are not put at risk, it is advisable to consult an experienced durable power of attorney lawyer who can explain in detail how powers of attorney work and help you plan for the future.