February 21, 2017
What if you become incapacitated due to unforeseeable circumstances, who will make financial and medical decisions for you?
Would you leave it up for the judge to make the decisions?
Having power of attorney (POA) documents in place can be just as important to an estate plan as having a living will, and in some cases even more vital.
The medical power of attorney and durable power of attorney are very simple documents that can save your family time, money, and emotional stress in the event that you become incapacitated. These documents will allow loved ones of your choosing to make your medical and financial decisions, and ensure that your day-to-day affairs can be taken care of with ease. While a living will lets everyone know what your wishes are after death, a POA empowers an individual of your choice to assist you with your medical and financial affairs when you are no longer capable.
To illustrate this, let’s examine what would happen if you were to have a stroke and live. Even though you survived the stroke, the damage done causes you to become incapacitated and disables you from making financial and medical decisions for yourself. What happens now? If you have a medical and durable POA, then your spouse or whomever you elected to serve as your power of attorney can make medical decisions, discuss your treatment plan with doctors, pay your bills, transfer money from your savings account to your checking account to cover medical costs and many more decisions. They can ensure that all of your financial and medical affairs will be taken care of without any issues.
You may read this and think that the state law will cover any issue you may encounter if you become incapacitated and don’t have a medical POA. However, there are many reasons why leaving your medical decisions up to the state law may not be a good choice. Consider the following situations:
1) What if your spouse dies before you?
2) What if your children cannot agree on a treatment plan?
3) What if your spouse becomes incapacitated as well and you have minor children?
4) What if your parents die before you?
What happens if you do not have these documents in place? For medical decisions, Texas state law dictates who has the power to make decisions for you. According to Section 313.004 of the law, the following people, in this order, are able to make medical decisions on your behalf:
1) Your spouse;
2) An adult child of the patient who has the waiver and consent of all other qualified adult children of the patient to act as the sole decision-maker;
3) A majority of the patient’s reasonably available adult children;
4) The patient’s parents; or
5) The individual clearly identified to act for the patient by the patient before the patient became incapacitated, the patient’s nearest living relative, or a member of the clergy.
There are many different scenarios where leaving your medical decisions to follow the Texas state law predefined order is not the best course of action. For financial decisions, there is no pre-determined order of people who are able to act on behalf of an incapacitated person. If a durable POA is not in place, then a court will appoint a legal guardian who will have the power to handle these matters. This can be a very time-consuming and costly process for your family. In addition, the court may appoint someone that you do not want handling your financial affairs.
In Texas, the POA documents are standardized and available online. While we recommend that you consult an attorney to review your overall estate plan, taking the time to execute these simple documents can save your loved one’s time, money, and emotional stress in the future.