When does a durable power of attorney not work?

It is a common occurrence at the Law Office of Bryan Fagan for a potential client to come into our office for a free-of-charge consultation and to declare that he or she has a power of attorney regarding another person’s finances, health, or other area and to then ask questions about how he or she can perform certain actions on that person’s behalf. 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.

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.

These are limited circumstances involving if a person is in a coma, physically impaired, or mentally challenged to the point where he or she cannot make choices on their own. One of the requirements to determine incapacity would be to have two doctors’ statements saying that the person is incapacitated before the power of attorney kicks in. This would be a situation where if your power of attorney says it’s a springing power of attorney where it springs to life when the principal is incapacitated then you have a good 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.

We could go through a laundry list of different types of ways that a person could become incapacitated. Ultimately, it does not matter. So long as the person is incapacitated and unable to make decisions for themselves then the power of attorney would go into effect. However, keep in mind that as soon as the principal passes away then the power of attorney dies with him or her. You cannot be the agent over a person who has passed away in the same way that the person who has passed away cannot make decisions for him or herself due to their being deceased.

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 be named as the executor of that person’s will and can help him or her to make sure that their property is divided and distributed in a way that corresponds with the wishes in that will. Or you may be able to be named as that person’s guardian were you to apply for guardianship through a probate court. The attorneys with the Law Office of Bryan Fagan can help you with whichever road you want to go down. We offer free-of-charge consultations, and we will be honored to meet with you or a family member if you have questions about a particular issue as it relates to 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.

The reason that you may have been named as an agent within a medical power of attorney document is because someone has a great deal of trust in you to be able to care for him or her if the other person becomes incapacitated speaks volumes of 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.

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.

If the power of attorney is marked as a medical power of attorney, then you would not have the ability to run down to that person’s bank or credit union and take out a bunch of money from their bank account to pay medical bills or anything else for that matter. 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 saying that it would make sense to be able to access a checking or savings account if a person 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.

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. We have the experience that you need to be able to understand this important area of the law as well as the heart of a teacher that you can greatly benefit from when it comes to having complex issues explained to you in a way that you can understand and apply to your life.

Additional information on powers of attorney in Texas

Having a power of attorney is something that many people choose to do when they are engaged in estate planning. We have already covered many of the ways that powers of attorney have certain limitations regarding their use and their ability to be utilized both in medical and financial settings. 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.

One of the first questions that we are asked by people 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.

However, there are also limited powers of attorney that you can bestow or grant 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.

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. However, we also discovered that there are specific circumstances where you may not be incapacitated but rather will simply be out of the country or otherwise out of pocket and therefore cannot transact business for yourself. 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 interesting topic in the world of Texas powers of attorney is what is known as 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.

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. The power of attorney document, as long as it is honored by a third party, provides a great number of rights to the agent. 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.

In closing, the more educated you can be on this subject of estate planning generally and powers of attorneys specifically the better off you can be. There is a lot of planning and thinking that can go into the subject wherein your family can benefit a great deal whether you are interested in creating a power of attorney for yourself or in helping a relative do the same. The attorneys with the Law Office of Bryan Fagan can walk you through your options and help you to be able to understand what direction is best for your family to go in at this time.

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.

Book an appointment with Law Office of Bryan Fagan using SetMore

Categories: Uncategorized

Share this article