Durable and Medical Powers of Attorney: What can they do?
A power of attorney is a well-known, powerful tool that allows you to give another person the power to make important decisions for you when you are unable to do so yourself. The person who gives their decision-making power to someone else is called the “principal” and the person who accepts the decision-making power is the “agent.” Usually, the principal’s agent is a trusted friend or family member, who the principal believes will act in their best interest when their well-being is in jeopardy.
A power of attorney can come in different forms. The most common forms include a durable power of attorney and a medical power of attorney. A durable power of attorney allows a person to make various important decisions for you, such as financial and legal decisions, and a medical power of attorney allows a person to make health care decisions for you.
Although most people are familiar with what a power of attorney is, there is often a lot of confusion about the scope of an agent’s power under a durable power of attorney or a medical power of attorney and what to do if you suspect a person is abusing these powers.
Durable Power of Attorney
A durable power of attorney lists the types of decisions that your agent can make for you. The agent’s authority to act on your behalf is limited to the powers within the list. If you are mentally competent, you can change or revoke your agent’s powers. The Texas Legislature has approved a form for durable powers of attorney, which is commonly used by attorneys in practice. Below is a list of the typical transactions that an agent may be able to perform under a power of attorney:
Real property transactions
Tangible and personal property transactions
Stock and bond transactions
Banking and other financial transactions
Business operating transactions
Insurance and annuity transactions
Estate, trust, and other beneficiary transactions
Claims and litigation
Personal and family maintenance
Benefits from social security, Medicare, Medicaid, or other governmental programs
Retirement plan transactions
Tax matters
If you want to limit the above powers, you can simply cross them off of the power of attorney form. In addition to granting the above powers, you can allow your agent to be entitled to reimbursement for expenses incurred on your behalf and to receive compensation for serving as your agent. The power of attorney can become effective immediately on the date it is executed or when you become disabled or incapacitated depending on how it is completed. If it becomes effective upon incapacitation, a doctor must first determine that you are incapacitated before the power of attorney becomes into effect. The power of attorney will continue until it you revoke it (usually by a written statement indicating that it is revoked).
Medical Power of Attorney
A medical power of attorney is a type of power of attorney that allows your agent to make health care decisions for you. Like a durable power of attorney, you will want to name a trusted family member or friend as your agent. You cannot name your physician, health care provider, an employee of your physician, your residential health care provider, or an employee of your residential health care provider as your agent, unless that person is your relative. It is important for your agent to be familiar with your wishes.
Like a durable power of attorney, a medical power of attorney will become effective once a doctor determines you are unable to make medical decisions for yourself due to disability or incapacity. The doctor’s determination of your inability to make decisions must be noted in your medical record before your agent can start acting on your behalf.
An agent under a medical power of attorney has broad sweeping powers to make decisions on your behalf. As indicated in the standard form, your agent has the power to make any decisions related to your health care, based on your religious and moral beliefs. This means your agent can consent to or refuse medical treatment. This is why it is important for your agent to be familiar with what your wishes, morals, and religious beliefs are, and that the agent is someone you trust will not alienate you from your loved ones.
A medical power of attorney will continue until you are determined to be competent, and you either revoke it or complete a new power of attorney naming a new agent.
What if an agent is abusing their power of attorney?
If you suspect that an agent is abusing their power of attorney, you may be able to bring a claim to evaluate and remedy the agent’s behavior.
To pursue a claim against an agent for an abuse of power under a power of attorney, you must be someone who has an interest in the principal’s well-being or estate. This can include a relative, a person who demonstrates an interest in the principal’s well-being or estate, a guardian or other fiduciary acting for the principal, or a governmental agency with authority to provide services to the principal. Tex. Est. Code Sect. 751.251. A qualified party may bring a claim to challenge the validity or enforceability of a power of attorney or to review an agent’s conduct. See id. Of course, if the principal has the mental capacity to do so, a principal may bring a claim of their own to challenge an agent’s conduct.
If a principal is mentally incapacitated and is being abused by an agent under a power of attorney, an interested person may protect the principal from further abuse by applying for guardianship over the principal. Once the person is appointed as guardian, he or she may revoke the power of attorney and take any other legal action necessary to remedy the agent’s abuse of power.
If one is successful in challenging the validity or enforceability of a power of attorney or an agent’s abuse thereof, the court might, but does not have to, award the prevailing party their costs and reasonable and necessary attorneys’ fees.
It is important to consult with an attorney before deciding to pursue a claim against an agent or attempting to obtain guardianship over a loved one. Often, agents engage in hurtful conduct, such as alienating principals from their loved ones, but even these actions can be valid and enforceable under certain circumstances. If you're unsure about how to navigate the complexities of a power of attorney or suspect misuse of an agent’s authority, we're here to help. Contact us today at 512.374.4922 or email [email protected] to get started on securing peace of mind for you and your loved ones!