Get Your Powers of Attorney NOW and Avoid Trouble LATER

When you think about estate planning, a will is the most common thing that springs to the minds of Lampasas County residents.  As most people know, a will directs the disposition of your money and possessions after you die.  But many people overlook something very important—what happens while you are alive!  If you become incapacitated (a legal term meaning that you cannot legally make decisions for yourself), who will take care of you? How can you make sure that the medical treatment you receive will be what you would choose?  How will it all get paid for?  And will someone you trust even be allowed to cut through the red tape and help you?

Luckily, there are two relatively simple but extremely useful documents that will allow your trusted representative to take care of just about everything for you.  These documents are called the Durable Power of Attorney and the Medical Power of Attorney. 

Durable Power of Attorney: A Durable Power of Attorney (Durable POA) is a document which grants rights to the representative of your choice.  This document will allow your trusted representative to “step into your shoes” and make legal decisions on your behalf.  

• You may select from just a few powers or nearly unlimited rights.  With a Durable POA, your representative can pay bills, deposit checks, withdraw funds, sell property, assist with some types of long-term care planning, sell stocks & bonds, sell real or personal property, operate your business, help you claim benefits, manage lawsuits, give gifts on your behalf, and more.
• The powers you grant using the Durable POA can be made exercisable immediately OR can be delayed until the event of your incapacity.  If powers are exercisable immediately it prevents a delay later on; if the powers are exercisable only on incapacity, there are medical and legal steps that have to be taken to prove that you are indeed incapacitated.  But you may make either choice at your own discretion.
• Most businesses will only accept a Durable POA which has been recorded in the real property records of your county.  Although the document is technically effective as soon as it is signed, you should simply have it recorded (for a small fee) at the County Clerk’s office if you foresee an immediate need for use.  Our office can take care of this step for you at your request when we create you Durable POA.
• This document may be revoked by you at any time prior to you becoming incapacitated.  The document is only valid while you are alive.

Medical Power of Attorney: The Medical Power of Attorney (Medical POA) can be customized as needed, but when you include the HIPAA release and Advance Directive to Physicians language, this one document does three important things. 

• First, it allows your representative to make medical decisions on your behalf in the event that you are no longer able to make the decisions on your own.  This is the main power included in all Medical POA documents. 
• Second, you can add language to express your decisions concerning your future medical treatment.  These orders are what news reporters often call a “living will” but are formally called an Advance Directive to Physicians.  This allows you to order what medical treatment you will receive in case you suffer either a terminal condition or irreversible condition and for some reason cannot express these wishes.  Do you wish to have extraordinary measures taken to preserve your life, or would you prefer not to be placed on ventilators, feeding tubes, etc.? Most people have an opinion about this and this language helps make the opinion very clear.
• Third, the 2006 passing of the Health Insurance Portability and Accountability Act (commonly known as HIPAA) means that medical providers are less likely than ever to share information with your relatives and friends if you are sick.  Although HIPAA is designed to protect patient privacy, in practice it can mean that your relatives are cut off from information.  Each Medical POA we create includes a HIPAA release so that doctors can work together with your personal representative and can share the information needed to inform your representative’s decisions.

***Note, if you have already have a Medical POA but it was created BEFORE August 21, 2006, you will want to have a HIPAA release added.  We do this for a very small charge.

• The powers granted by a Medical POA are only exercisable by your representative at the point when you can no longer make your own medical decisions and/or cannot express your desires.  If you retain legal capacity, you will receive whatever medical care you choose.
  
• This document may be revoked by you at any time prior to you becoming incapacitated.  The document is only valid while you are alive.

No one knows exactly what the future holds.  You might be healthy your entire life, or you might have an accident or suffer an illness which causes you to lose the legal ability to make decisions for yourself.  If you do have the unexpected happen, you will need the help of a trusted relative or friend—so make sure that person has the tools they need to help you.  Those tools are the Medical and Durable Powers of Attorney.

At Martin, Millican, Henderson & Shrum, we have been serving our friends and neighbors in Lampasas, Copperas Cove, Kempner, Lometa, Llano, and Bend since 1975.  Our attorneys are helpful, friendly, and experienced at drafting wills and other estate-planning instruments such as Medical and Statutory Durable Powers of Attorney. We will evaluate your unique situation and help you determine exactly which documents and options are right for you.  Contact us today to discuss estate planning and related documents like wills and powers of attorney.

This blog post only applies to the laws of Texas. The post may or may not match your individual situation. Be careful not to treat it as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.

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