What is the purpose of a power of attorney?

A power of attorney shows other people that your agent has the legal authority to act in your name. However, the law does not require people to deal with your agent instead of you.

As stated above, a power of attorney may be for a limited purpose and a limited time period, or it can be general and have no expiration date.

The two types of powers of attorney that people use the most are general and special.

• A special power of attorney gives the agent the right to do a certain thing within a certain period of time. For example, sign the papers needed to transfer property. This limits the right of the person you selected to act for you.
• A general power of attorney gives the agent the right to do many things. They can transfer title to your car or property; open or close bank accounts; transfer certificates of deposit; and provide money for your family. This kind of power of attorney gives the agent a lot of responsibility, so the agent should be someone who is trustworthy and honest. 
• There is a difference between a generaland a durablepower of attorney. If you become unable to handle your affairs (incompetent), a general power of attorney ends. If you have signed a durable power of attorney, the agent still has the power to handle your affairs if you become incompetent. 

Who can give someone power of attorney?

You must be an adult and of sound mind to give another person power of attorney.  In other words, you have to be at least eighteen years old, and you have to understand what you are doing at the time you sign the power of attorney.

Can my agent tell me what to do?

No. The power of attorney only allows your agent to do the things you want done for you. It does not limit your ability to do things for yourself.

Does the power of attorney end?

Yes. There are three times that a power of attorney ends. A limited power of attorney usually says the ending date. An example of this is a power of attorney that is done when a couple is buying a house and one person cannot attend the closing. A general power of attorney ends when you become disabled or incapacitated. A durable power of attorney ends when the principal dies. If you do not want your power of attorney to end until you die, you need a durablepower of attorney.

What is a durable power of attorney?       

A durable power of attorney does not end if you are incapacitated. A durable power of attorney can be for health care decisions or for business and financial decisions.  There are certain requirements:

• It must be in writing,
• It must name the person that you want to be your agent, and
• It must say how the power of attorney is to be used.

For example:

• If you want a financial durable power of attorney to continue even if you become disabled, it must say: “This power of attorney is not affected by subsequent disability or incapacity of the principal.”
• If you want a financial durable power of attorney to start if you become disabled, it should say:
  “This power of attorney becomes effective on the disability or incapacity of the principal.”
• It must be signed and notarized.

Are there advantages to a durable power of attorney?

With a durable power of attorney, you can say who you want to take care of everything if
you cannot take care of your own affairs. If you have a durable power of attorney, the court may not have to name a guardian for you if you become incapacitated.

What happens if I have a durable power of attorney and the court appoints a guardian?

Your financial durable power of attorney ends if the court names a guardian of your estate.  If the court names a temporary guardian, your financial durable power of attorney may be suspended.

Can I stop a power of attorney?

You have the right to end your power of attorney any time. This is called revokinga power of attorney. If the power of attorney is for a specific amount of time, it will end automatically. You must tellyour agent that you are revoking the power of attorney. You must also tell the people working with the agent that you revoked the power of attorney.  It is best to prepare a sworn written statement of your revocation. You must have the mental ability to revoke a power of attorney. That is, you must be able to understand what you are doing.

What is a statutory durable power of attorney?

In Texas, this is a standard form provided in the Texas Probate Code. This form gives your agent very broad powersto act in your name. Use it carefully and with caution. Before signing a statutory durable power of attorney, you should ask a lawyer to help you understand the powers that you are giving to the person you have selected.

Who should I choose to be my agent?

Choose this person very carefully. That person can act in your name, as if you were there. In most cases, you are responsible for anything your agent does in your name.  Choose someone who is honest and trustworthy. This is especially important if you are signing a general durable power of attorney. Because of the powers that you give to another person, it is highly recommended that you talk to a lawyer before signing any power of attorney. 

You should especially speak to a lawyer to make a Durable General Power of Attorney. If you are low-income, we may be able to refer you to a lawyer who can do this for free. If you are older and do not live in an area where these services are free, you can pay a reduced fee.

Can I give someone power of attorney to sell my property?

Yes. This is a special power of attorney that only allows your agent to sign a deed for the property. This kind of power of attorney must include a legal description of the property that you want to sell. You must record the power of attorney in the deed records of the county where the property is. If you want, you can add an expiration date to the power of attorney.

What if my spouse is my agent and we get divorced?

If your spouse is your agent, the power of attorney ends the day your divorce is granted. If you do not want your spouse’s power of attorney to end when you divorce, make sure to write that in the durable power of attorney. 

Do businesses have to accept my power of attorney?

Unfortunately, no.  Most businesses will accept payments made by an agent under a power of attorney, and most banks will accept deposits of money into accounts that are made by an agent. Some banks or other financial institutions will not accept powers of attorney for withdrawals of money, that is, when an agent tries to take money out of an account or tries to close an account. Some banks have their own forms for a power of attorney. You should contact the banks and other financial institutions where you have accounts to see what their policy is.

What is a medical power of attorney?       

A medical power of attorney is a document signed by a competent adult that gives your agent, a person that you trust, the authority to make health care and medical decisions for you.

Is a medical power of attorney different from a durable power of attorney?

A medical power of attorney is one kind of durable power of attorney.  A medical power of attorney gives your agent the right to make health care decisions for you. A general durable power of attorney does not give the person the right to make decisions about health care.

When can my agent use a medical power of attorney?

Your agent cannot make medical decisions for you unless you cannot make decisions for yourself. Your doctor must say, in writing, that you cannot make your own health care decisions. The doctor’s certification goes in your medical file. 

Your agent can only make medical decisions for you until you are able to make them again. You can revoke (cancel) your medical power of attorney at any time.

Do I have to pay for the medical care authorized by my agent?

Yes. You are responsible for paying your medical bills, whether you or your agent requests the care.

What is the difference between a living will and a medical power of attorney? 

In Texas, a living will is called a directive to physicians. A directive to physicians tells your doctor the kinds of medical care that you want to receive and lists any kinds of medical procedures that you do not want to have done to you in case you become incapacitated. For example, if you do not want to be placed on a ventilator (artificial breathing machine), you can say that in a directive to physicians. 

Many people choose to have a directive to physicians and a medical power of attorney. If you have both and they are different, doctors will use the most recent one.  If your agent tells your doctor not to perform, or to stop performing procedures to keep you alive, the doctor does not have to follow your living will.

Who can I name as my agent in a medical power of attorney?       

Your agent can be any adult (18 or older) who is of sound mind, exceptthe following people:

• Your health care provider
• Your residential care provider (for example, a nursing home administrator)
• An employee of your health care provider or residential care provider,
  unless that employee is your relative.

What is a health care provider?       

A health care provider is a person or facility that provides health care. Your doctor is a health care provider. A residential health care provider is a person or facility that gives medical care in a setting where people stay for a long time. Nursing homes are residential health care providers.

What decisions can an agent make with a medical power of attorney?

Unless the medical power of attorney limits the agent’s powers, they can make most medical decisions for you. But,  

The agent cannot:

• Agree to hospitalize you for mental health treatment,
• Agree to convulsive treatment or psychosurgery,
• Agree to an abortion, or
• Refuse care that will keep you comfortable.

What is a health care decision?       

Health care decisions are agreeing to, or not agreeing to, medical procedures or services to diagnose or treat your physical or mental condition. Your agent has to talk to your doctors before making medical decisions. Your agent can see your medical and hospital records.

Can I object to receiving or withholding treatment?

Yes, as long as you can make your wishes known. Even if your agent has a medical power of attorney, your wishes must be honored, even if you do not have the ability to make medical decisions.

Does the agent have to take responsibility for decisions about my health care?

If your agent follows the power of attorney and makes medical decisions in good faith, they cannot be held legally responsible for the decision they made.

How long does a medical power of attorney last?       

The medical power of attorney begins when your doctor says in writing that you cannot make medical decisions for yourself. It lasts until:

• You are able to make medical decisions
• You revoke (cancel)  it
• Its expiration date (if there is one).

If the power of attorney expires when you are incompetent, it will stay in effect until you are competent or revoke it.

What do I have to do for my medical power of attorney to be legal?        

You have to sign your medical power of attorney in front of 2 witnesses or have your signature acknowledged by a notary. 

You also have to read a disclosure statement that explains what a medical power of attorney does, and you have to sign a statement saying that you read and understood the disclosure statement. 

The witnesses must hear you say that you know what a medical power of attorney is and that you are signing it voluntarily, not under pressure. The witnesses have to confirm that you met all the requirements and that you appeared to be of sound mind to make a medical decision when you signed.

Who can be a witness?

Both witnesses must be at least 18 years old. And, oneof the witnesses cannot be:

• Your agent,
• Your primary doctor or an employee of your primary doctor,
• Your residential care provider or an employee of your residential care provider,
• Your spouse or heir,
• A person entitled to any part of your estate, or
• Any person who has a claim against your estate.

How do I revoke (cancel) a medical power of attorney?        

You can revoke a medical power of attorney even if you cannot make your own medical decisions. To cancel it, you can:

• Tell the agent, in person or in writing,
• Tell your doctor or residential care provider, in person or in writing,
• Do something that shows you intend to revoke the power, or
• Sign a new medical power of attorney. 

If your spouse is your agent, the medical power of attorney automatically ends if you get divorced.

Do my doctors have to follow the medical power of attorney?

Yes, as long as they know it exists and it does not go against your wishes or the law.

Where can I get a medical power of attorney form?

You and your family can get free Medical Power of Attorneyand Directive to Physiciansforms if you are over 60 years old and low income, or if you are eligible for Medicare. 

For more information…

Texas Law Help has useful information on many areas of the law. Go to www.texaslawhelp.org.

Legal Hotline for Texans: (800) 622-2520 or (512) 477-3950

Call our attorney-staffed legal hotline. Advice is free for Texans 60 and over or for anyone eligible
for Medicare.

APPENDIX A

SAMPLE REVOCATION OF POWER OF ATTORNEY

I hereby revoke any and all powers of attorney given to or allowing _________________ (name of former agent) to act in my behalf, and I declare that all power and authority granted under such powers of attorney are hereby revoked and withdrawn.

Signed under seal this _____ day of _______________________________, 20_____.

______________________________

[Signature]

______________________________

[Printed or Typed Name]  

SUBSCRIBED, SWORN TO, AND ACKNOWLEDGED before me on this day.

_______________________________

NOTARY PUBLIC IN AND FOR:

STATE OF TEXAS

COUNTY OF ___________________

Date: _______________

APPENDIX B

Medical Power of Attorney Form – 2 Witnesses

Designation of Health Care Agent

I, (insert your name) __________________________

appoint: Name: ____________________________

Address: _________________________________

________________________________________

Phone: __________________________________
as my agent to make any and all health care decisions for me, except to the extent I state otherwise in this document. This Medical Power of Attorney takes effect if I become unable to make my own health care decisions and my physician certifies this fact in writing.

LIMITATIONS ON THE DECISION MAKING AUTHORITY OF MY AGENT ARE AS FOLLOWS:

__________________________________________________________

__________________________________________________________

__________________________________________________________

Designation of Alternate Agent

(You are not required to designate an alternate agent but you may do so. An alternate agent may make the same health care decisions as the designated agent if the designated agent is unable or unwilling to act as your agent. If the agent designated is your spouse, the designation is automatically revoked by law if your marriage is dissolved.)

If the person designated as my agent is unable or unwilling to make health care decisions for me, I designate the following persons to serve as my agent to make health care decisions for me as authorized by this document, who serve in the following order:

First Alternate Agent

Name: _______________________________

Address: _____________________________

____________________________________

Phone: _______________________________

Second Alternate Agent

Name: _______________________________

Address: _____________________________

____________________________________

Phone: _______________________________

The original of this document is kept at ____

_____________________________________

The following individuals or institutions have signed copies:

Name: ________________________________

Address: ______________________________

_____________________________________

Phone: _______________________________

Name: ________________________________

Address: ______________________________

_____________________________________

Phone: _______________________________

Duration

I understand that this power of attorney exists indefinitely from the date I execute this document unless I establish a shorter time or revoke the power of attorney. If I am unable to make health care decisions for myself when this power of attorney expires, the authority I have granted my agent continues to exist until the time I become able to make health care decisions for myself.

(IF APPLICABLE) This power of attorney ends on
the following date: _________________________

Prior Designations Revoked

I revoke any prior Medical Power of Attorney.

Acknowledgment of Disclosure Statement

I have been provided with a disclosure statement explaining the effect of this document. I have read and understand that information contained in the disclosure statement.

(YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY)

I sign my name to this Medical Power of Attorney on

_______ day of ___________ month ________ year

at _______________________________________.
(City and State)

_________________________________________
(Signature)

_________________________________________
(Print Name)

Statement of Witness

I am not the person appointed an agent by this document. I am not related to the principal by blood or marriage. I would not be entitled to any portion of the principal's estate on the principal's death. I am not the attending physician of the principal or an employee of the attending physician. I have no claim against any portion of the principal's estate on the principal's death. Furthermore, if I am an employee of a health care facility in which the principal is a patient, I am not involved in providing direct patient care to the principal and am not an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility.

Signature: ________________________

Print Name: _____________________________

Address: ________________________________

_______________________________________

Date: __________________________________

Signature: ________________________

Print Name: _____________________________

Address: ________________________________

_______________________________________

Date: __________________________________

APPENDIX  C

MEDICAL POWER OF ATTORNEY – No Witnesses, Signed by Notary

DESIGNATION OF HEALTH CARE AGENT.

            I,_______________________________(insert your name)  appoint:

Name:________________________________________________________

Address:_____________________________________________________

Phone____________________________________________

as my agent to make any and all health care decisions for me, except to the extent I state otherwise in this document.  This medical power of attorney takes effect if I become unable to make my own health care decisions and this fact is certified in writing by my physician.

LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY AGENT ARE AS FOLLOWS:

_______________________________________________________________

_______________________________________________________________

DESIGNATION OF ALTERNATE AGENT.

            (You are not required to designate an alternate agent but you may do so.  An alternate agent may make the same health care decisions as the designated agent if the designated agent is unable or unwilling to act as your agent.  If the agent designated is your spouse, the designation is automatically revoked by law if your marriage is dissolved.)

            If the person designated as my agent is unable or unwilling to make health care decisions for me, I designate the following persons to serve as my agent to make health care decisions for me as authorized by this document, who serve in the following order:

                        A.        First Alternate Agent

Name:________________________________________

Address:_____________________________________

Phone__________________________________

B.        Second Alternate Agent

Name:________________________________________

Address:_____________________________________

Phone__________________________________

            The original of this document is kept at:

______________________________________________________

______________________________________________________

______________________________________________________

The following individuals or institutions have signed copies:

Name:_________________________________________________

Address:______________________________________________

______________________________________________________

Name:_________________________________________________

            Address:______________________________________________

______________________________________________________

DURATION.

            I understand that this power of attorney exists indefinitely from the date I execute this document unless I establish a shorter time or revoke the power of attorney.  If I am unable to make health care decisions for myself when this power of attorney expires, the authority I have granted my agent continues to exist until the time I become able to make health care decisions for myself.

(IF APPLICABLE)  This power of attorney ends on the following date:________________

PRIOR DESIGNATIONS REVOKED.

            I revoke any prior medical power of attorney.

ACKNOWLEDGMENT OF DISCLOSURE STATEMENT.

            I have been provided with a disclosure statement explaining the effect of this document.  I have read and understand that information contained in the disclosure statement.

            (YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY.)

            I sign my name to this medical power of attorney on _______ day of ________________________(month, year)  at_________________________________________________________ (City and State).

_________________________________________________________  (Signature)

_________________________________________________________  (Print Name)

THE STATE OF TEXAS

COUNTY OF _____________________

            This instrument was signed and acknowledged before me on this ____ day of _________, 20___, by ___________________________________.

                                                                        _________________________________________

                                                                        Notary Public in and for the State of Texas

                                                                        My commission expires:  __________________