Effective Use of Powers of Attorney
Friday, April 24, 2009
Contributed by: Sharon E. White
Let me tell you a story. An amazing young woman with a job, a husband and two school age children has a massive stroke one day that renders her totally disabled. While her family is trying to come to grips with her condition and grim prognosis and while her husband is trying to figure out how to care for a disabled wife and raise two children alone, they are faced with another reality. Because she does not have powers of attorney, no one is authorized to make medical decisions for her; no one is authorized to transact business for her. Consequently, her husband has to apply to the court to be appointed her guardian, a process that is very costly and time consuming. Sadly, this is a true story.
Two of the most important legal documents that a person can have are a Durable Power of Attorney and a Medical Power of Attorney. In a Durable Power of Attorney the principal (you) name a person (your agent) who can act for you in business transactions. Most people name an agent with a provision that if that person fails or ceases to serve, successor agents named in the power of attorney will serve successively in the order named.
With a durable power of attorney, the “durable” part means that the power of attorney continues to be effective even if you (the principal) become incompetent. The principal can choose to have the durable power of attorney either become effective immediately upon signing or become effective only upon the principal’s disability or incapacity.
Most Texas attorneys use the Statutory Durable Power of Attorney that was promulgated by the Texas Legislature. You do not have to use this form. However, using the statutory form may make it easier on your agent because the person or institution to which it is being presented is more likely to be familiar with, and therefore more comfortable with, the statutory form.
In a Medical Power of Attorney the principal (you) name a person (your agent) who can make medical decisions for you in the event you are not able to do so. Unlike the durable power of attorney in which you have a choice as to whether it is effective immediately or only upon incapacity, the medical power of attorney is only effective upon the incapacity of the principal. So, as long as you are competent, you make your own medical decisions. Again, most people name an agent with a provision that, if that person fails or ceases to serve, successor agents named in the power of attorney will serve successively in the order named.
No one wants to think something bad will happen to them. No one wants to think about being disabled. But it does happen, sometimes suddenly. Certainly the prospect of disability looms larger as we get older, but you are never too young to get these documents in place.
This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
