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What is a Power of Attorney?

A power of attorney is a document that designates another person as “attorney in fact” or “agent” to act on behalf of a named principal. The power is limited when the principal becomes incapacitated or deceased unless a durable power of attorney is created.

A statutory durable power of attorney means the agent is not affected by disability, incapacity, or death of the principal. This shows the principal’s intent that the authority conferred on the agent will be exercised although the principal may become incapacitated or pass. The Texas Estates Code lists the common powers an agent will have with respect to the principal’s property and financial matters but will allow the principal to withhold certain powers if they so choose.

How Much Power Does an Agent Have?

Since an agent is given a wide range of authority and duties, a principal can choose to limit the powers given to the agent. Generally, a power of attorney will give an agent authority to act over any real property, personal property, financial, and legal matters. An agent’s powers will not reach to medical and health care decisions unless a medical power of attorney is created.

What is a Medical Power of Attorney?

A medical power of attorney will give the agent authority to make health care decisions should the principal not be able to.

An agent can make these decisions when a physician certifies in writing the principal is incompetent. However they will not be able to act against the will of the principal if they object.

Is There a Difference Between Medical Power of Attorney and a Directive to Physicians?

A directive to physicians is a document that allows a person with a terminal illness or other irreversible medical condition to describe their wishes on how they want to be cared for at the end of their life. This document is more commonly referred to as an “Advanced Directive” and/or “Living Will” and it communicates a person’s medical wishes with a physician should they become terminally ill. The directive to physicians is limited to withholding or withdrawing health care or medical treatment only to a person having a terminal or irreversible condition. A medical power of attorney is much broader and allows the agent to make most medical decisions with a list of a few exceptions.

How is a Power of Attorney Created or Revoked?

A power of attorney must be signed by a competent principal. Each instrument must be signed by two witnesses and notarized.
A principal should always choose an agent that will act in the best interest of them at all times. You should find an agent who knows your beliefs and values and whom you have confidence and trust in.

A durable power of attorney can lapse when the document contains a specific time limit; however, in order to revoke the powers in the document, the agent must receive actual notice that the power of attorney is being revoked. This might mean the agent returns the document or that the old one is destroyed and a new one be made.
 
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*This article has been written and provided for educational purposes in an attempt to provide the reader with a general understanding of the particular topic and area of law covered in this Article. It is not to be relied upon for any purpose. The reader acknowledges the underlying analysis and legal conclusions referenced in this Article may be inaccurate by the changing of the law or by a controlling court opinion to the contrary. No attorney-client relationship exists until an appropriate engagement letter has been signed. Contact our Firm to discuss how the contents of this Article may apply to your specific situation.