Power of Attorney

In Texas, a power of attorney may address either medical decisions or financial decisions. A medical power of attorney naturally concerns medical decisions, but financial powers are assigned through a durable power of attorney. Powers of attorney may either take effect immediately or upon the incapacity of the individual. The documents often include at least one designated alternative person to function as the attorney in fact.

Why Execute a Power of Attorney?

Powers of attorney serve a practical purpose for those who are unable to attend to their affairs due to either a disability or an absence. Such documents are a crucial part of preparation for individuals that anticipate suffering from Alzheimer’s Disease. Medical powers also enable someone to make decisions on your behalf if you are in a coma or otherwise unable to make medical decisions.

Durable Power of Attorney (Financial Powers)

A durable power of may enable an individual to exercise any of the following powers:

(A) Real property transactions

(B) Tangible personal property transactions

(D) Commodity and option transactions

(E) Banking and other financial institution transactions

(F) Business operating transactions

(G) Insurance and annuity transactions

(H) Estate, trust, and other beneficiary transactions

(I) Claims and litigation

(J) Personal and family maintenance

(K) Benefits from Social Security, Medicare, Medicaid, or other governmental programs or civil or military service

(L) Retirement plan transactions

(M) Tax matters

Durable powers of attorney can serve limited purposes such as authorizing a spouse to complete a real estate transaction. However, individuals can also use a durable power of attorney to allow an individual to wield a wide variety of financial authority. Such sweeping powers of attorney are often intended to prevent the need for guardianship proceedings, which possess additional legal fees and impose more duties on the acting guardian. Powers of attorney themselves impose record keeping requirements and the like on the acting attorney in fact. Durable powers of attorney require a written revocation unlike medical power of attorneys.

Medical Power of Attorney

A medical power of attorney enables an individual to make medical decisions on your behalf. Medical directives (referred to as living wills in other states) are also important and instruct physicians regarding the appropriate course of action in the event of a terminal illness or condition. While helpful, medical powers of attorney are easily revoked. In fact, an individual may revoke a medical power of attorney by any act that demonstrates a specific intent to revoke the power, regardless of mental state. This portion of the law in Texas Health and Safety Code Section 166.155 ensures that a medical power of attorney cannot be used to hold an individual against his or her will. Below is the full text of Section 166.155.

Texas Health and Safety Code 166.155. Revocation of a Medical Power of Attorney

(a) A medical power of attorney is revoked by:

(1) oral or written notification at any time by the principal to the agent or a licensed or certified health or residential care provider or by any other act evidencing a specific intent to revoke the power, without regard to whether the principal is competent or the principal's mental state;

(2) execution by the principal of a subsequent medical power of attorney; or

(3) the divorce of the principal and spouse, if the spouse is the principal's agent, unless the medical power of attorney provides otherwise.

(b) A principal's licensed or certified health or residential care provider who is informed of or provided with a revocation of a medical power of attorney shall immediately record the revocation in the principal's medical record and give notice of the revocation to the agent and any known health and residential care providers currently responsible for the principal's care.