At the Law Office of Bryan Fagan, it’s not uncommon for potential clients to come in for a free consultation and share that they hold a power of attorney for someone else’s finances, health, or other matters. They often follow up with questions about what actions they can take on that person’s behalf. However, it’s crucial to address the question: when does a durable power of attorney not work? Understanding the limitations and conditions under which a power of attorney becomes ineffective is essential for ensuring that clients can act in the best interests of the individual they represent.
One of our patented responses to this question is to ask the person where the principal (the person who executed the power of attorney) is right now. Many times, we will be told that this person has passed away. It is at that point where one of our experienced estate planning attorneys will have to tell this potential client that you no longer have a power of attorney. That power of attorney document is void and no good. The person is better off throwing it away and not trying to use it any longer in the future.
Understanding the Limitations of Durable Power of Attorney
In a recent YouTube video posted to our estate planning page, attorney Megone Trewick discussed when a durable power of attorney no longer works regarding someone’s finances. The bottom line is that if a person passes away then the power of attorney is no good and you cannot be the power of attorney over a deceased person or their estate. Rather, the only time you can be someone’s power of attorney is when that person is alive. You would need to look at the type of power of attorney you have in that situation and if you have any authority over him or her period typically, this is only true when and if that person becomes incapacitated.
Limited circumstances arise when a person is in a coma, physically impaired, or mentally challenged to the extent that they cannot make decisions for themselves. To establish incapacity, the law usually requires statements from two doctors confirming that the individual cannot make decisions for themselves before the power of attorney takes effect. If your document specifies that it is a springing power of attorney, it activates only when a doctor officially deems the principal incapacitated. In this case, you have a well-crafted power of attorney document. It will become effective immediately. So, if the person executes the power of attorney and then develops Parkinson’s disease, Alzheimer’s, or dementia then that power of attorney would go into effect, and you would be able to make decisions on that person’s behalf.
Navigating Incapacity and Estate Planning Options
We could go through a laundry list of different types of ways that a person could become incapacitated. Ultimately, it does not matter. The power of attorney takes effect as long as the individual is incapacitated and unable to make decisions for themselves. However, keep in mind that as soon as the principal passes away then the power of attorney dies with him or her. You cannot act as the agent for someone who has passed away, just as the deceased individual cannot make decisions for themselves.
In a situation like that, you are better off working with our office and with the person to have a will created for him or her. You may become the executor of that person’s will, which allows you to ensure their property is divided and distributed according to their wishes. Alternatively, you can apply for guardianship through a probate court to become their guardian. The attorneys with the Law Office of Bryan Fagan can help you with whichever road you want to go down. We provide free consultations and welcome the opportunity to meet with you or a family member if you have questions about probate, estate planning, or guardianship law.
Medical powers of attorney
It is reasonable to feel like you have the world at your fingertips when you have medical power of attorney concerning a family member or other individual. The medical power of attorney provides an agent with a great deal of authority and autonomy in many cases. That medical power of attorney allows you to make decisions regarding medical care and other healthcare-related decisions on behalf of an individual if he or she becomes incapacitated. You are also able to limit the type of power that he or she has by specifying what he or she can and cannot do within the durable power of attorney document.
Being named as an agent in a medical power of attorney reflects the trust someone has in you to care for them if they become incapacitated. This level of trust speaks volumes about your character. However, you need to be aware that there are limitations on the authority of a person to act on another person’s behalf in the context of a medical power of attorney.
Responsibilities of a Medical Power of Attorney
A common situation that arises related to a medical power of attorney is that you can make medical decisions for that person which could include situations like recommending that the person go into nursing care for whatever reason is relevant in that person’s life. Also, you may be able to make decisions on behalf of this other person regarding elective surgeries. Suffice it to say that a power of attorney means transferring decision-making capabilities over to you for extremely important areas of that person’s life. Before accepting the power of attorney over another person you should consider whether you are in a position to take on those responsibilities and to talk to the principal while he or she is cognizant and aware of what is going on.
If you are named as a medical power of attorney, you need to make sure that you read through the document. In many cases, there will be a specific beginning and end date for when the medical power of attorney is valid. For example, suppose that your principal will be undergoing a medical procedure and the recovery period is going to be a specific length of time. In that case, you would know the exact date on which your powers of attorney begin and on which date the powers of attorney are no longer valid. This is critical if you are using the power of attorney to obtain a person’s medical records or to make decisions about upcoming medical treatments.
Limitations of a Medical Power of Attorney
If the power of attorney is designated as a medical power of attorney, you cannot access that person’s bank or credit union to withdraw money for medical bills or any other expenses. You can do that if you are operating under a durable power of attorney or if the medical power of attorney allows you to do so.
However, in most circumstances a medical power of attorney allows you to make medical decisions for an incapacitated person. This probably will not include anything having to do with accessing that person’s checking or savings accounts. Many people are surprised by this, believing it would make sense to access a checking or savings account when someone is sick and unable to do so themselves. However, if this is what the person wants to do he or she may be able to do so but should not name the power of attorney as a medical power of attorney.
Authority Limits of a Medical Power of Attorney
The key part of this entire discussion is that as a medical power of attorney, you can only make medical decisions on that person’s behalf even if the person tells you to go to their bank because he’s not feeling well enough to do so himself. You draw your authority from the legal document itself and not necessarily from the requests of another person. This is true even if the person making the request is also the person who issued you the power of attorney in the first place.
The bottom line is that there are several limitations to the power of attorney documents in Texas. However, if you execute a power of attorney, you can largely create the limitations to be as specific or as general as you would like them to be. In that case, you may want to work with an experienced attorney with the Law Office of Bryan Fagan. Our team has the experience to help you navigate this important area of the law. We approach each situation with a teaching mindset, ensuring that we explain complex issues in a way you can understand and apply to your life.
Additional information on powers of attorney in Texas
Many people opt to create a power of attorney as part of their estate planning. We have discussed various limitations associated with powers of attorney, particularly regarding their use in medical and financial contexts. As a legal document or instrument or you provide another person the authority to transact business or make medical decisions for you the power of attorney is a crucial piece of the estate planning puzzle. We would like to provide you with additional information as we close out today’s blog post about how to create a power of attorney and what information may be helpful to you as you begin to investigate this subject in greater detail.
Understanding the Scope of Power of Attorney Documents
One of the first questions people often ask is how comprehensive a power of attorney document can be. The answer to this question is that a power of attorney can be comprehensive when it comes to being able to name a person, known as an agent, to be able to do things like pay your bills and handle matters regarding third parties. This would be true of a general power of attorney document. You may know of a certain period coming up where you are going to be out of commission due to a planned medical procedure and therefore want to name a person to transact business on your behalf. In that case, a specific power of attorney it seemingly be the direction that you would like to go in.
You can also grant limited powers of attorney to another person. An example would be if you are going to be out of the country for the next two weeks due to a relative of yours passing away. You will be leaving the country to care for your family and attend a funeral. However, this unexpected passing away of a relative may have come at an inopportune time given that you have a closing on a piece of property that you purchased coming up next week.
If you execute a limited power of attorney, you can name an agent who can attend the closing on your behalf but then do nothing else after that. You could do this if you wanted the person to be able to make sure that the closing went through without a hitch but did not necessarily want that person to do anything else for you while you are out of the country.
Reasons for Creating Powers of Attorney and Their Variations
The main reason why most people create powers of attorney is that they anticipate a time when he or she will be unable to handle financial or medical matters for themselves and instead choose to name a responsible person to act on their behalf during this period of incapacity. We also acknowledge that specific situations can occur when you are not incapacitated but are out of the country or otherwise unavailable, preventing you from managing your own transactions. In that case, a limited power of attorney with a specific beginning and end date may be the direction that you want to go in.
Another intriguing topic in Texas powers of attorney is the concept of a springing power of attorney. This happens in circumstances involving an elderly person who is still competent and cognizant of what is going on in their life currently. However, that person anticipates a time when he or she may not be able to make decisions on their behalf because of old age setting in or a current condition worsening. In that case, he or she may want to create a power of attorney which only becomes effective when the person becomes incapacitated. This is a reasonable desire since while the person is healthy it is unlikely that he or she would want to give away their autonomy in that regard.
Challenges of Springing Power of Attorney and Choosing the Right Agent
One of the difficulties with the springing power of attorney, however, is that in many cases the person named as an agent would need to obtain a doctor’s signature on an affidavit or similar document to declare the principal as incapacitated. This can be difficult to do if the doctor is unwilling or if you simply cannot find a doctor to provide an opinion about incapacitation. This puts you in a situation where you have no legal authority to act on the person’s behalf but where he or she may legitimately be unable to make wise decisions for themselves.
Keep in mind that one of the risks you run by providing someone with rights such as power of attorney is that that person can gain access to your personal health information, bank accounts, and other investments. As long as a third party honors the power of attorney document, it grants the agent a wide range of rights. So, if you are curious about how to create a valid power of attorney then you should be sure to think long and hard about the person you are naming as your agent as well as about what limitations you would like to put within the power of attorney itself.
Conclusion
Being well-informed about estate planning and powers of attorney is essential for your peace of mind and the well-being of your family. Understanding when does a durable power of attorney not work can help you avoid potential pitfalls and ensure that your plans are effective. Thoughtful planning can greatly benefit your family, whether you’re looking to create a power of attorney for yourself or assist a relative in doing so. The attorneys at the Law Office of Bryan Fagan are here to guide you through your options and help you determine the best course of action for your family’s needs at this time.
Other Related Articles
- Navigating Power of Attorney Paperwork for Business Owners in Texas
- What Are the Key Elements and Limitations of a Medical Power of Attorney?
- How Do You Revoke a Power of Attorney in Texas?
- Financial Power of Attorney in Texas: A Comprehensive Guide to Empowering Your Financial Future
- Who Has Power of Attorney After Death if There Is No Will?
- Navigating Power of Attorney Paperwork for Business Owners in Texas
- What Is a Durable Power of Attorney?
- Texan Trails: Exploring the Wild West of Medical Power of Attorney!
- Guardianship vs Power Of Attorney In Texas: Which Is Right For You
- When does a medical power of attorney not work?
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 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 estate planning as well as about how your family’s circumstances may be impacted by the filing of a probate or guardianship proceeding.
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
