A medical power of attorney gives your agent the right to make decisions about your medical care if you become unable to do so, within any limits you set.
A medical power of attorney is a document that names someone you trust to oversee your health care if you become seriously ill and are unable to speak for yourself. In some states you may make up a separate living will to describe your wishes for medical treatment in detail, while in other states the medical power of attorney and living will may be combined in an advanced health care directive document. You'll want to spell out your wishes in detail either in the medical power of attorney or in a living will (https://www.avvo.com/legal-guides/living-wills).
Choosing your proxy
If you are drawing up a medical power of attorney—also known as a durable power of attorney for health care—you need to choose a person who will make medical decisions for you if you become unable to do so. This person is known in various states as a health care proxy (https://www.avvo.com/legal-guides/health-care-proxy), surrogate, or attorney-in-fact for health care. This person can't be your doctor or other health care provider. Choose someone you trust who you feel understands your attitude toward medical care and will carry out your wishes.
Creating a medical power of attorney
It is not difficult to draw up a medical power of attorney: many online resources are available that offer forms (http://www.uslegalforms.com/powerofattorney/?puslf=gl+financial+power+of+attorney+Phrase&gclid=CJ_xlYL1o5MCFQhsgwodEzXxoQ). If you don't understand some elements of the form, you may want to have an attorney explain it to you, but it isn't necessary to hire an attorney to draw up the document.
If you have a medical power of attorney, it is known as a "durable" power of attorney (https://www.avvo.com/legal-guides/durable-power-attorney). It will remain in effect even if you become seriously ill and unable to answer questions about your care. If you wish to change it or appoint a different person as your proxy, you can't alter your medical power of attorney. You will need to create a new document that will supersede the old.
If you don't have a medical power of attorney
If you choose not to have a medical power of attorney and suddenly become ill, medical decisions may be made by your family members, who may be under emotional stress due to your illness. Decisions may also be made by your doctor or, in some cases, by judges.
These people may not know you very well and may not know what medical treatment you would want to have, or want to refuse. If you have not appointed someone you trust who understands your wishes, you can't be sure your medical treatment will be handled the way you would like.
U.S. Legal: Health Care Forms by State (http://www.uslegalforms.com/powerofattorney/?puslf=gl+financial+power+of+attorney+Phrase&gclid=CJ_xlYL1o5MCFQhsgwodEzXxoQ)
Related Legal Guides:
Power of Attorney (https://www.avvo.com/legal-guides/power-attorney)
Durable Power of Attorney (https://www.avvo.com/legal-guides/durable-power-attorney)
Health Care Proxy (https://www.avvo.com/legal-guides/health-care-proxy)
Financial Power of Attorney (https://www.avvo.com/legal-guides/financial-power-attorney)
Setting up the right power of attorney documents can give you peace of mind in case you are unable to make your own financial or medical decisions.
General (Financial) Power of Attorney The Louisiana Civil Code allows a competent person to select another individual who will act on his or her behalf through power of attorney in the event of incapacity. If you become incapacitated, a general power of attorney for financial decisions will be needed to help avoid the possibility of an interdiction. With a general power of attorney, you have control over who makes decisions on your behalf as well as the scope of powers to be granted. A general power of attorney also helps keep all of your planning options viable. The Agent A power of attorney enables a competent individual (the principal) to name a representative or attorney-in-fact to manage his or her affairs. The representative is sometimes referred to as the agent. The attorney-in-fact does not have to be an attorney. A key question is who will be selected as the attorney-in-fact. Consideration should be given to the degree of maturity and financial sophistication when selecting an attorney-in-fact to manage financial decisions. The proximity of the agent to the principal and the availability of the agent are additional considerations. Express Powers Certain powers must be expressly granted in the power of attorney. For this reason if a power of attorney has already been executed, it may have to be updated to provide the family with maximum planning flexibility. For example, it is critical that the power of attorney include the power to donate when planning to protect assets from Medicaid spend-down. Additional express powers include the power to accept a succession, contract a loan, draw a promissory note and make healthcare decisions. Scope of Agent Powers Powers of attorney may be very limited in scope for example, to sell a tract of land. Alternatively, powers of attorney may be very broad in scope empowering the agent to act in practically any manner the principal may act. When planning for long-term care, powers of attorney are typically drafted with very broad powers to allow the agent to act under a variety of future unknown circumstances. If a power of attorney is already in place, it should be reviewed by an elder law attorney to ensure the agent has sufficient powers. Agent Duties and Termination A power of attorney does not give the attorney-in-fact unbridled freedom when acting on behalf of the principal. The attorney-in-fact is bound to fulfill their duties with prudence and diligence. The attorney-in-fact is responsible to the principal for the loss that the principal sustained as a result of the attorney-in-fact's failure to perform as well as for exceeding his or her authority. The principal may terminate or amend the power of attorney at any time. In addition, the power of attorney terminates due to the death of the agent or principal, interdiction of the attorney in fact or the principal. Healthcare Power of Attorney A special type of power of attorney known as a medical power of attorney authorizes the attorney-in-fact to give consent for medical procedures or to obtain medical records when the principal is unable to make such decisions. This is a type of limited power of attorney that only empowers the attorney-in-fact to make medical decisions on the principal's behalf. Medical powers of attorney, sometimes called advanced directives, may be incorporated into a financial/general power of attorney; however, the principal may wish to name a different person to make health care decisions. A HIPPA authorization should be included to allow the agent to obtain medical information. Avoiding Interdiction If a power of attorney is not in place and the principal does not have capacity to execute one, a curator may have to be appointed through an interdiction. In an interdiction, the incapacitated individual is sued in court (typically by a family member) to ask the court to declare him or her legally incompetent. An interdiction is a public and often expensive court proceeding. In addition, many options for protecting assets from long-term care expenses are no longer available after the interdiction. A power of attorney is a cheaper, faster, more flexible, and less traumatic alternative. Everyone should have an up-to-date power of attorney; and those faced with diminishing capacity should have powers of attorney drafted as soon as possible.
Durable Power of Attorney The Statutory Durable Power of Attorney is an important part of every person's overall estate plan. This document allows you to name a person to step in and handle financial transactions and decisions for you in the event that you are temporarily unable to do so yourself. Imagine a situation where you are injured and in the hospital for 6 weeks. Who is going to make sure that your rent is paid so that you will have a place to live when you are released? Who will make sure your other bills get paid? The Power of Attorney form allows you to name that person. Medical Power of Attorney The Medical Power of Attorney is a very important document for every adult person to have. Once a person is 18 years of age, no one other than a spouse has the legal right to make medical decisions for them. In addition, hospitals and health care facilities are not allowed to release information to anyone unless there is a Medical Power of Attorney and HIPAA Release on file. This document is incredibly important for parents of college age children. The parents will need this document before they are able to assist with the decision making process should something happen to their child. Many people fear that a Medical Power of Attorney is giving somebody else the right to deny you care. That is simply not true. The person assigned as Medical Power of Attorney is only authorized to make decisions for a person's welfare. They are consulted by physicians and other health care professionals in choosing between types of treatment. They cannot order that no treatment be given. Additionally, they never override your personal decisions. If you are awake, alert and capable of making decisions, the medical professionals will talk to you first. HIPAA Release HIPAA is short for Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191). HIPAA has 2 major parts: Title I and Title II. Title I pertains to protection for health insurance coverage for workers and their families in times of job change. Title II addresses administrative provisions. The Act was supposed to establish national standards for electronic health care data and make it easier to share health data. Unfortunately, the privacy restrictions in the Act had unintended consequences for families. It is now imperative that you have a HIPAA release naming people that you want to have access to your medical information. Declaration of Guardian Guardianship occurs when a person is deemed to be incapacitated and a court determines that a person needs to be appointed to ensure the person's safety and security. The Declaration of Guardian document allows you to state now who you trust to have appointed by the court if the necessity ever arises. Signing this document does not make a person your Guardian, rather it instructs the court who could serve as Guardian in the event you need one. The document can also instruct the court on persons you wish to disqualify. Directive to Physicians (Living Will) The Directive to Physicians is most commonly known as a Living Will. This document allows you to direct your physician to comply with your wishes concerning end of life treatment. Texas splits this document between Terminal and Irreversible conditions. Terminal Condition means an incurable condition caused by injury, disease, or illness that according to reasonable medical judgment will produce death within six months, even with available life sustaining treatment provided in accordance with the prevailing standard of medical care. Irreversible condition means a condition, injury, or illness that may be treated, but is never cured or eliminated that leaves a person unable to care for or make decisions for the person's own self; and that, without life sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal. The main difference is terminal means 6 months or less, irreversible has no time limit. A person would be able to live indefinitely in an irreversible condition as long as they receive the necessary medical treatment This document allows you to state whether or not you want the doctor's to continue to provide life-sustaining treatment if you are suffering from a terminal condition or an irreversible condition. Last Will and Testament The Last Will and Testament is a mechanism for handling your probate assets after your death. Probate assets can include your home, vehicles, cash, bank accounts, business interests, and all of your personal property. If you don't decide how you want your property distributed upon your death the state will do it for you. Everyone over the age of 18 should have a will.There are several different types of wills that are available depending on your specific situation. You may need a simple will or you may need a more complex will that sets up a Testamentary Special Needs Trust for your adult disabled child. Let us get to know you and your specific situation before we can recommend any type of plan for you. One thing is for sure, you will not leave our office without an understanding of your situation and what we can do to help you achieve peace through planning. In addition to property concerns, your Last Will and Testament can also name a Guardian for your minor children. This is one of the most important reasons to have a will in place as you want to have a plan that leaves your family with certainty and clarity in the event you are no longer here.
A health care proxy is a document that gives another person the power to make health care decisions for you, should you ever become unable to make them for yourself. You may wish to include a medical directive as part of your health care proxy. A medical directive states what kinds of medical care you would want, and might also include specific directions about starting or stopping any life-sustaining treatment. Should I have a health care proxy? If an accident or an illness were to leave you in a condition that made it impossible for you to communicate what medical treatment you did or didn't want, a health care proxy would give someone you trust the legal right to make those decisions on your behalf. If there is any disagreement about how you should be treated, a health care proxy would put those arguments to rest-the person acting as your agent and the doctor would be required to follow the instructions in your proxy. It is important to choose a person you know and trust to be your agent, since this person is going to act on your behalf in making important medical decisions. Before you create your health care proxy, be sure to discuss your wishes with the person you choose as your agent. They should be clear and in agreement with your medical decisions, especially when it comes to "heroic measures" or life-sustaining medical treatment. How does a health care proxy work? Your health care proxy goes into effect if you need medical treatment but are in a condition that makes you unable to communicate your wishes regarding treatment. If at any point you recover and are able to make your wishes known, then your health care proxy is set aside and the wishes you express in person have authority. Make sure that the person you choose to act as your agent has a copy of the document. Your doctor should also have a copy with your medical records. You may even wish to keep a copy with you at all times in case of an emergency. Creating a health care proxy A health care proxy is a very personal document. You can write it alone, with people who are close to you, or with the person you have chosen to act on your behalf. Since health care proxy laws can vary slightly from state to state, you may wish to consult a legal expert to make sure your proxy is enforceable. Things to include in a health care proxy: State in your proxy that you are giving directions about your care to medical professionals, should you become incapacitated. Express situations in which you want your proxy to go into effect (e.g., terminally ill or comatose with little chance of recovery). List treatments you do not want (respirator, resuscitation, medicines, etc.). Include the name and contact information of the person you have chosen to act on your behalf. You may also want to choose an alternate in case the first person is unavailable for any reason. Discuss your wishes with this person and include in your proxy that you have had this conversation. Have your health care proxy notarized. Give a copy to your representative and to your doctor. You may even want to keep a copy with you at all times in case of emergency. Additional resources: Do Your Proxy: Create Your Advance Directive Documents Online (http://www.doyourproxy.org/) eHow: How to Write Your Own Health Care Proxy (http://www.ehow.com/how_12696_write-own-health.html) Related Legal Guides: Medical Power of Attorney (https://www.avvo.com/legal-guides/medical-power-attorney) Power of Attorney (https://www.avvo.com/legal-guides/power-attorney) Living Will (https://www.avvo.com/legal-guides/a-living-will)
Separate and Community Property with Married Couples Husbands and wives should each have their own will. Your will only disposes of your own separate property and your one-half interest in community property. It does not dispose of your spouse's separate property or your spouse's one-half interest in community property. Community property is all property acquired by a husband or a wife during marriage unless acquired by gift or inheritance. It does not matter who actually earned the money, whose name is on the account, or whose name is on the title. In Texas, community property is owned one-half by the husband and one-half by the wife. In Texas, separate property is any property acquired before the marriage and any property acquired by gift or inheritance during the marriage. Care of Minor Children When Both Spouses are Deceased You and your spouse may name guardians for your minor children in your will. Since minors in Texas do not have the capacity to manage property, you may also appoint trustees to manage the property you leave to your children until they reach a certain age. If you do not have a will, the court, in its discretion, may name guardians and trustees whom you may not have chosen. Drafting Your Own Will While there are many "do it yourself" wills on the market, it is recommended that each person have an attorney prepare his or her will. Administration of your estate after death can be fairly simple and inexpensive if your will contains very specific language and is executed with all the due formalities required by Texas law. Missing any of this language or its formalities may result in an invalid will and significantly increase the costs of administration. Drafted Wills from Other States While wills executed in other states are valid in Texas, it is recommended that you revise your will if you are now a Texas resident. Out-of-state wills generally do not contain the specific language that would allow the will to be probated without court supervision. Probate Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property. If you die without a will, the cost to probate your estate is substantially higher and more time consuming because of additional requirements of state law. On the other hand, if you have a properly drafted will, the independent executor named in your will may administer your estate with minimal court supervision. This allows the probate process to be completed in a timely and cost effective manner. Executor An executor is a personal representative named in your will who is responsible for the probate of your estate. If you die without a will, the court will appoint an administrator of your estate based on the order specified in the Texas Probate Code. If you die with a will, the court will appoint the executor(s) named in your will before considering any other individuals. Durable Power of Attorney A durable power of an attorney is a document in which you can name an authorized agent to undertake business or legal matters on your behalf. You may wish to have a durable power of attorney in effect so that a trusted person can undertake transactions on your behalf if you are incapacitated or unavailable. A durable power of attorney is only valid while you are still alive. Medical Power of Attorney A medical power of an attorney is a document in which you can name an authorized agent to undertake medical decisions on your behalf if you are no longer capable of making those decisions. A physician has to certify that you are no longer capable of making medical decisions before your agent would have any authority. Changing or Cancelling a Will Once created, your will remains valid unless it is revoked by you. However, you should review your will anytime a significant change occurs in your life to determine if it still fits your needs. Examples of a significant change are marriage, divorce, death, additional family members, or a significant change in wealth. You can cancel your will by making a new will that specifically states that it is revoking all prior wills. Or you can change your will by creating a codicil or amendment to your will that will not negate your entire will. Summary A will gives you power over your assets and your estate even after your death. By not having a will, you not only risk higher administrative costs and procedures but more importantly you lose control over the distribution of your assets and estate. If you choose to draft the will yourself, it is wise to at least have a qualified attorney review the will in order to ensure that it complies with state law. All adults should consider creating a will as it not only protects you, it protects your loved ones as well.
Durable Power of Attorney A Durable Power of Attorney allows you to appoint someone to make financial decisions for you if you are unable to make those decisions for yourself. If you become incapacitated, the person you name can take care of financial matters for you. The power of attorney may be general or limited. A general power of attorney will allow the person you name to do anything financial on your behalf. This authority should be only given to someone who you would trust with everything you own. A limited power of attorney can be limited to certain transactions. It is usually used for selling a house. However, be advised that it is becoming increasingly difficult to get banks or investment firms to recognize a power of attorney. There is nothing under Texas law that requires an institution to accept a power of attorney. Medical Power of Attorney A Healthcare Power of Attorney or Medical Power of Attorney allows you to appoint someone to make medical decisions for you, if you become too ill or incompetent to make decisions for yourself. Directive to Physicians and Family or Surrogates Directive to Physicians are sometimes called "living wills." The Directive tells the doctor whether you want life-sustaining procedures withheld or stopped in the event there is a terminal or irreversible condition. You can specify in the Directive that you want life-sustaining procedures continued even if you have a terminal or irreversible condition. DNR DNR stands for "Do Not Resuscitate." A DNR tells the medical personnel that you don't want CPR or artificial ventilation or to generally be resuscitated under any circumstances. A DNR must be signed by a physician and two witnesses. Organ Donation An Organ Donation Form allows you to specify what organs you want to donate and for what purposes. Emergency Document Card An Emergency Document Card allows healthcare personnel access to your medical documents in the event of an emergency. Authorization for Release of Medical Information An Authorization for Release of Medical Information or HIPAA authorization allows you to specify who has access to your private medical information. Declaration of Guardian A Declaration of Guardian allows you to specify who will act as guardian of your estate and/or person in the event you become incompetent. You can also specify who you do not want to become guardian under any circumstances. Guardian of the Estate manages your assets and guardian of the person makes medical decisions and other decisions that do not involve finances.