Creating a power of attorney for yourself isn't only important for you to consider as you are near your golden years. It is something for you to consider at any point in your life as an adult. A power of attorney is an acceptable document in Texas that gives one or more people the power to make decisions and act on their behalf in a principal-agent relationship. It may be that you want to have someone act as your agent in terms of closing a business deal or even closing on your home. Or, it could be a medical power of attorney if you want a certain person to be able to make medical and treatment decisions on your behalf if you are indisposed or incapacitated.
The power that you give another person to act on your behalf in certain situations can be either temporary or permanent. If you become unable to act on your own accord then the power of attorney may go into effect, depending upon what you list in the document itself. Or you may want another person to have that authority immediately. This will be based largely on your ability to manage your affairs and understand the circumstances that are relevant to your life at the moment. You can revoke a power of attorney but you must provide written notification of the revocation to the person whom you have named as your power of attorney.
The person you name as your power of attorney is known as either your agent or your attorney. The agent can act in any way that is authorized on your behalf within the power of attorney document. If you have a power of attorney then you should provide the document to your agent, as it may be requested in certain circumstances such as if you are in the hospital and have not provided it beforehand to a doctor before having surgery. In many cases, if you need to sign a title for a vehicle you will need to provide the power of attorney document to your agent so that he or she may do so. If a bank account needs to be closed then your power of attorney must present the document itself to your bank or credit union.
Why would you want to give someone power of attorney over your affairs?
It is an incredibly difficult situation that you must be going through to give another person autonomy over your affairs while you are still alive. Adults value our ability to make decisions for ourselves and to turn over that authority to another person must mean that something serious is going on. For one reason, it may just be easier to have another person be able to make those decisions on your behalf if your trust their judgment. You may be fit as a fiddle but if that person is better equipped to be able to handle a matter for you then you may give him or her temporary power of attorney. An example of this is if you need to be present in a place for closing on a home or property but do not want to make the trip. You can provide someone with power of attorney over that specific closing and he or she can act as your agent while the closing occurs.
Another example of when a power of attorney could be helpful is if you suffered an accident or injury that prevents you from physically being present for something important that you had previously committed to. For example, you may not be able to get out of the house because you just underwent surgery and are bedridden for some time. Many times this can happen if you have surgery on your back that can not only be painful but also require you to remain motionless for a period after the surgery. You could anticipate the need for someone to act on your behalf in this regard by setting up an agency relationship with a power of attorney. That way a closing or other important business deal could occur without your having to be physically present for the event.
A big item to bear in mind is that if you do not name a power of attorney on your behalf when you have the opportunity then a court may have to appoint a guardian to your estate if you become incapacitated or otherwise unable to act on your behalf. It is unlikely that you would be able to choose who can act on your behalf in one of these hearings. This is the exact opposite of having autonomy over your situation. Rather, you can submit some control over a bad situation like this by creating a power of attorney when you still have the mental and/or physical wherewithal to do so.
Importantly, you can choose the scope of the power of attorney document as has already been mentioned in this blog post. If you want that person to act on your behalf only in a specific instance then you can specify this in your power of attorney document. A guardianship proceeding may install specific benchmarks or checkpoints when it comes to that person having to be reviewed periodically for competency but otherwise, he or she may be able to act as guardian over your estate more a long period. The question that you would need to ask yourself is who should act as your agent if you are interested in creating a power of attorney over your affairs.
Do you have someone in mind who can act as your agent?
I think the most likely person who could act on your behalf if you want to create a power of attorney is a family member. Your spouse is the most likely person if you are married but your parent, sibling, or another family member may be the best choice for you if you are single. Keep in mind that although you will be asking that person to likely handle matters related to finances and/or your health, he or she does not necessarily have to be a genius or someone who is well versed in either of these areas. A super, super smart person could be helpful if you find yourself in a pinch but otherwise, a person of average intelligence who has a great amount of integrity could be even more well-suited to acting on your behalf as an agent.
If your agent must sign a document while operating under a power of attorney then he or she will need to sign your name, followed by a description of you: your name, who you are, and in what capacity you are signing. If you have someone try and challenge your actions as the power of attorney it is wise to seek out the advice of experienced attorneys who can guide your actions and make sure that you are operating within the bounds of the power of attorney document.
What are some examples of powers available for you to give your agent?
An agent who is operating within the world of finances can potentially have an impact on your life in an immediate sense but also on your estate. Transferring assets to trusts, and performing other actions are exactly what you should specify within the power of attorney form. Otherwise, you run into a situation where your document is so open-ended as to be unenforceable but also it could be so nonspecific that your agent has questions about their responsibilities under the document.
What powers are available to your agent in Texas?
If you have been wondering how your estate plan can fully execute your wishes, then you should pay attention to this. Have you thought about gifting anything to people in your life as a part of your estate planning? Keep in mind that you need to be able to select an attorney to draft your power of attorney forms who is trustworthy and intelligent enough to follow instructions and use good judgment. This does not mean that he or she has to be a genius or someone of above-average intelligence. Rather, he or she simply needs to be someone whose judgment and integrity are above reproach.
What happens if you move from Texas?
A power of attorney document that you create while a Texas resident will still be valid if you move to another state. Updating your power of attorney when you believe that major life events have occurred is generally speaking a good idea even if it is not necessary to do when you move. This is a good idea for any estate planning documents such as a will or trust, in addition to your power of attorney documents. Also, keep in mind that while you may not need to update your power of attorney forms due to a move across state lines your will and other estate planning documents likely do need to be updated if you move to another state from Texas. These may not have to be significant changes but each state has its nuances when it comes to probate and estate planning law and your documents need to reflect those nuances as closely as possible.
Allow your family to become a part of the discussion
One of the main benefits of the creation of a power of attorney document is that you need to put a great deal of thought into creating these documents. Determining who will serve as your agent, what powers he or she will have in addition to other considerations that may be relevant to your circumstances. This should allow you and your family the perfect opportunity to discuss estate planning goals, your family, your lives, and what you are trying to accomplish with this power of attorney. It may be that your family has gone many years without having had this discussion or perhaps has never had this talk. The creation of a power of attorney gives you the best possible chance, to be honest, and transparent with your family so that there are no misunderstandings or surprises when you pass or the power of attorney becomes necessary.
Look closely at the language you choose to include in your power of attorney
The needs that you have will change over time. What you need at age 30 will not be the same as at age 60 or 90. You will need to be in a state of constant review and consideration when it comes to updating language so that you can take into consideration what you need and who you need it from. The reality of life as a 90-year-old is substantially different than as a young parent at 30. The likelihood of your needing the power of attorney is much less at age 30 than at age 60. For that reason, you should consider making the language more comprehensive as you age. As a senior citizen, there may be a need to build into your power of attorney language about long-term care as well as government benefits and a list of other golden-years-related information. You may want to consider how an agent should or should not be able to act in these ways on your behalf. At age 30, these issues are not relevant for the most part.
What you do can prepare your family for what may happen in the future
Nobody wants to be caught in a position where they are incapacitated and must rely on another person to make decisions for them. However, it would be worse to be in that position and also be caught off guard. The government having to appoint a guardian on your behalf is worse than your agent being named in a previously created power of attorney. Whatever the case is, you should want to have a power of attorney set up so that you can be prepared if and when the unthinkable happens and you need to rely upon a power of attorney due to incapacitation.
When you take the opportunity to sign a power of attorney then the burden placed on your family is much less than it would have otherwise been. Your family does not want to worry about financial issues, logistics, and estate planning mistakes when you pass away. This is especially true if you pass away unexpectedly. Rather, they will want to be with family and mourn your passing while remembering better days with you. Having to concern themselves with financial matters completely throws a wrench into this otherwise achievable goal.
You can do an honest assessment of your family and determine what sort of conversations you all have about money. Could it be that you decide to talk more about money as your life ventures towards more wealth or more responsibility? That could be? Maybe once you started having grandchildren the idea of estate planning and powers of attorney became a lot more interesting to you. Just seeing what is going on around you may open up a world of possibilities when it comes to becoming willing to share with your family information about your goals, your plans, and where you see your estate going in the future.
Whether it be a power of attorney or a will you need to work with people that you trust when you are planning for an end-of-life matter. When it comes to a power of attorney you may not be at the end of your life when the power of attorney becomes valid, but you would be at a point where your family will need to know what you want to have to happen if you become incapacitated. It is not something that you want to leave up to a judge or even your family to determine for you. Rather, you can think about those matters when you are fully able to do so and then you can make an educated decision about them later on after consulting with your family if you wish.
One of the great frustrations that people have with estate planning and family is that their family may be kept in the dark for years about what will happen at the end of their life. To avoid misunderstandings and other issues that your family will be left wondering about after you are gone would be to talk to them about your plans and your intentions while everyone can get together. This does not mean that you should use this time as an opportunity to ask for their input. Rather, you can use the time to highlight what you are planning on doing so that when the time comes there are no surprises that anyone has to endure.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas probate as well as the potential consequences of your filing a probate case or becoming involved in an estate planning matter.