Does The Oldest Sibling Automatically Have Power of Attorney?
A power of attorney (POA) is a person who is given decision-making authority over someone else, such as the authority to make financial and medical decisions.
The oldest child does not automatically have power of attorney. A power of attorney must be granted in a formal written document and properly executed in accordance with Texas law.
The oldest child will only have the power of attorney if their parent executed a written power of attorney appointing them.
At Hardie Alcozer, our attorneys can guide you through the process of appointing a power of attorney, or reviewing a power of attorney that has already been prepared.
Speak to us today to find out how we can help by calling (512) 374-4922.
Why an Aging Adult May Need a Power of Attorney
There are many reasons a person might need a close friend or family member to make medical and financial decisions on their behalf.
Cognitive Decline - If an elderly loved one is diagnosed with a condition such as dementia or Alzheimers, then they should assign a power of attorney before significant cognitive decline.
Financial Difficulties - If a loved one have difficulty staying on top of their finances or are in danger of overspending, then a person may need a financial power attorney.
Illness - A diagnosis of any illness may lead someone to want to ensure that their wishes will be respected in case of an emergency.
Travel - When an adult decides they wish to travel, they may assign someone to handle bills and incoming checks while they are away or in case something significantly delays their return.
Family Conflict - Unfortunately, it is common for an adult child to fight with their siblings about a parent's care. A power of attorney may limit conflict as it makes a parent's wishes clearer and prevents people from intervening other than their chosen power of attorney.
Aging - Someone's wishes may not be understood or respected without the right legal documentation. Therefore, we recommend that people establish a power of attorney before they need it.
Regardless of your circumstances, it is a good idea to assign a power of attorney either for yourself or an aging relative. When someone is determined unable to make their own decisions and they do not have a POA or guardianship, proceedings can be expensive and stressful. Having everything in place relieves families from a lot of stress and protects the interests of the principal.
What Happens if a Parent Loses Mental Capacity, and There is No Power of Attorney?
If a power of attorney has not been executed and they lose mental capacity, the children will need to file for legal guardianship to manage their assets. At Hardie Alcozer, we cover guardianships and guardianship disputes and can guide you through the legal procedures.
Power of Attorney Terminology
First, it is important to understand a bit of terminology.
The Agent - The person who becomes the power of attorney, with decision-making authority over the principal. It is essential that they understand the responsibilities they are taking on before they agree to become the principal. The agent is also known as the attorney in fact.
The Principal - The principal is the individual who needs a power of attorney. It is important that they understand the power they are giving to someone else when they make the decision to assign power of attorney.
Types of Power of Attorney
There are various types of power of attorney (POA), and choosing the right one will help to protect your interests. An attorney can help you choose the one that is most in line with your goals and help you file your POA document in the correct manner.
Medical Power of Attorney – also known as a health care proxy, can make health care and medical decisions if the principal becomes physically or mentally unable to make them. This includes end-of-life care decisions if they have not already been specified in a living will.
Durable Power of Attorney – can make decisions on a broad range of matters even if the principal becomes physically or mentally incapacitated.
Springing Power of Attorney – only has the power to make decisions in the event that the principal becomes incapacitated or disabled.
Limited or Special Power of Attorney – has limited authority to make specific decisions for a specified amount of time.
Sibling Conflicts Due to Power of Attorney
It is common for siblings to be in conflict over matters related to power of attorney, especially when the primary caregiver is different from the person appointed as power of attorney.
Other common disputes include the agent abusing their financial power, or making decisions without consulting with other family members.
An attorney can help you prepare power of attorney documents in a way that safeguards against these types of things happening.
When these conflicts unfortunately occur, our team can help you come to a resolution. If mediation fails and a power of attorney has acted illegally, they can also help you to hold them accountable through litigation (court intervention process).
How to Choose a Power of Attorney
Selecting the right person to be power of attorney is an important choice. You may want to consider the following questions.
Who do you trust?
A power of attorney should always put the needs of the Principal first, regardless of the circumstances. Therefore, it is essential that you trust the POA.
Are They Capable of Carrying Out The Principals Wishes?
A POA must comply with the wishes of the principal, this can be emotionally difficult for some people. For example, adult children may find it difficult to make the decision to end life support for their parents, even if it is what they wanted. It is also valuable to pick someone who tends to be available as POAs are often called upon to act without notice and need to be immediately available.
Is there a knowledgeable option?
If you know someone who has a medical profession, then they may be most suited to a medical POA role, or someone with accounting experience could be the best option for a financial POA role.
Are family members the right fit?
It is tempting to select a relative to be a POA by default, however, this is not always the best choice. Sometimes, this can lead to conflict and strained relationships. Instead, a close friend or professional proxy could be the best alternative, particularly if there is known family conflictor in some blended families.
Should power of attorney be divided?
Power of attorney can be split. For example, there may be one agent for medical decisions and another for financial decisions. This can take off some of the pressure that could exist if one person has to make all the decisions. It can also help keep things civil, as different parties will have some control. However, if there are multiple agents and they disagree, it could delay decisions. Further, the person authorizing medical care often needs the ability to utilize financial assets, and this would need approval from the financial POA.
Does Power of Attorney End?
There are some common situations where a power of attorney ends, which means that the agent will no longer have the authority to act on the principal's behalf.
They are:
If there is an end date specified in the legal document.
If the agent becomes mentally incompetent (unless the agent is a durable POA).
The agent chooses to resign.
If the agent dies.
If the principal has a guardian appointed.
If the principal dies.
In cases of divorce, the court may terminate the POA unless otherwise specified in the divorce decree.
Revoking Power of Attorney
As life goes on, circumstances change and you may decide to change the POA. The principal has the right to revoke the power of attorney at any time and does not need to provide an explanation unless they have become mentally incapacitated and the POA had durable power.
It is advised to seek help from an attorney if you wish to revoke the power of attorney. They will guide you through the process and help you replace the POA.
Easing Family Tensions About Power of Attorney
Family dynamics can sometimes become strained when decisions need to be made about POA's for aging loved ones. At Hardie Alcozer, we understand the importance of protecting family relationships and will mediate wherever possible while protecting the rights and interests of the principal.
Clear communication can make a big difference. It is often helpful to be open and honest about assigning a POA to prevent future conflicts.
Some families may benefit from having a neutral third party lead discussions and effectively explain everyone's position. We can help mediate between family members and ensure that everyone's questions and concerns are heard and answered.
Power of Attorney Texas FAQ
Q: Does the oldest sibling automatically have power of attorney?
A: The oldest sibling does not automatically have power of attorney, a POA must be legally assigned.
Q: Can I assign power of attorney online in Texas?
A: There are DIY online forms that will allow you to set up an attorney online. However, we always recommend that you seek advice from an attorney so that they can ensure that it is tailored to your family's needs and correctly executed to ensure is is accepted by businesses and hospitals.
Q: What is the process for assigning power of attorney?
A: A power of attorney lawyer can guide you through every step of the process and ensure that your rights and interests are protected. The key steps for assigning a POA are:
Decide on the type of POA you require.
Choose an agent and one or two back up forms.
Sign the POA document in the presence of a notary public.
Q: Do I need a will If I have a power of attorney?
A: We recommend that people still have a will even if they have a POA. A will specifies your wishes for after you die, while a power of attorney protects you while you are alive. A POA ends when you die, therefore there is no overlap.
A living will may also be necessary to specify end-of-life wishes, while a POA can ensure that certain matters are handled by someone in a position of trust.
Q: Can a sibling with power of attorney prevent other siblings from seeing a parent?
A: A POA cannot prevent other siblings from seeing their parents. If they do so, then they could face legal repercussions. If your sibling is preventing you from seeing your parent, then you should contact a lawyer to discuss your legal options.
Q: Is next of kin the eldest sibling?
A: If someone dies without a will in Texas, then their estate will be distributed in line with intestacy laws, which give assets to the deceased person's next of kin. The next of kin will include a living spouse and their children, regardless of their age. If a person has no spouse or children, their estate passes to their nearest living relative, which is defined in the Texas Estates Code.
Q: What do I do after I have assigned a power of attorney?
A: Once your POA has been assigned, you can give copies of the documents to the agents and any other important parties, such as your doctor or bank. You should also keep a copy in a safe place with all of your other estate planning documents.
Q: Do I need to update my POA document?
It is important to update your POA document if you have any significant life changes or change your mind about any of the aspects involved. We recommend that at the very least you review your POA and other estate planning every three to five years.
Q: How much does assigning a POA cost in Texas?
A: The cost of assigning a POA depends on the circumstances of your case. At Hardie Alcozer Law, our Austin power of attorney lawyers provides a flat fee service at a highly competitive rate, so you don't end up with any surprises. Contact us today and see how we can help.
Contact Hardie Alcozer Today
Assigning a POA is an important choice. As you are signing away decision-making rights that could have a big impact on your life and the lives of your family, it is essential that you can make informed choices from a place of clarity. That's where we can help.
At Hardie Alcozer, we pride ourselves on assisting clients through all their estate planning needs, including power of attorney disputes, probate, estate planning, and fiduciary litigation.
Contact us today at (512) 374-4922.