None of us will live forever. When contemplating death, most people ponder preparing and executing a will or trust, or implementing probate-avoiding techniques. These are certainly wise choices. But other critical documents should be considered.
Three of these (Powers of Attorney, Living Wills, Medical Powers of Attorney) are briefly described here. For the complete report, more details, instructions, and copies of forms, see Real Estate Center publication 2044, End-of-Life Documents, at
recenter.tamu.edu/pdf/2044.pdf.
Powers of Attorney
By executing a Power of Attorney, you grant another person, known as an attorney-in-fact or agent, the authority to manage your assets, among other things. You decide how long the agent serves and the scope of his or her authority. The person serving as your attorney-in-fact should be someone you trust implicitly, even though this person owes you a fiduciary duty to serve in your utmost best interests. For married couples, this is generally the spouse. The duration of the agent’s authority depends on whether you make the power durable or not. According to the statute, a durable power of attorney confers on the agent the continued authority to act notwithstanding your subsequent disability or incapacity. More specifically, the statute describes a Durable Power of Attorney as one that “does not lapse because of the passage of time unless the instrument creating it specifically states a time limitation.”
An added benefit of a Durable Power of Attorney is that you avoid having the court appoint a guardian, once you become incompetent. But, if the court appoints a permanent guardian, the Durable Power of Attorney terminates, and all assets under the agent’s control must be delivered to the guardian of the estate. Whether durable or not, no Power of Attorney survives your death.
Finally, the scope of the authority depends on whether you grant a general or special Power of Attorney. Basically, a General Power of Attorney permits the agent to enter any legal transaction you could enter. A Special Power of Attorney limits the authority to specific tasks. The promulgated Statutory Durable Power of Attorney Form lists 13 specific types of transactions the agent may enter on your behalf, real property transactions being one of them. You have the option of eliminating one or more of the listed transactions by crossing them out. You may also insert special instructions limiting or extending the powers and the time frames in which they may be exercised. These tasks are described in the Promulgated Statutory Durable Power of Attorney Form (recenter. tamu.edu/pdf/statutory_poa.pdf). This form must be signed before a notary to be effective.
Living Wills
Living Wills, also known as Directives to Withhold Life Support Devices, do not delegate your health care decisions to others, but relieve others from having to make them on your behalf. The preamble to the form gives insight regarding its usage. “It (the form) is designed to help you communicate your wishes about medical treatment at some time in the future when you are unable to make your wishes known because of illness or injury.” The form contains the following language: “If there comes a time that I am unable to make medical decisions about myself, because of illness or injury, I direct that the following treatment preferences be honored.”
The directive describes two scenarios. First, if in the judgment of your physician you are suffering with a terminal condition from which you are expected to die within six months even with available life-sustaining treatment, you may request that (1) all treatments other than those needed to keep you comfortable be discontinued or withheld and let you die as gently as possible or (2) that you be kept alive using available life-sustaining treatment. Second, if in the judgment of your physician you are suffering from an irreversible condition which prevents you from caring for or making decisions for yourself, and you are expected to die without life-sustaining treatment, you have the same two options. If after signing the document you are placed in hospice care, only those treatments needed to keep you comfortable will be provided, and you will not receive life-sustaining treatments.
Finally, if you do not have a Medical Power of Attorney and you are unable to make your wishes known, you may designate a person or persons to make treatment decisions compatible with your personal values at that time within the context of the Living Will. The statutory form contains several examples and explanations for various types of conditions including cancer, failure of major organs (kidneys, heart, liver, or lungs) and dementia, including Alzheimer’s. It defines the terms “irreversible condition,” “life-sustaining treatment,” “terminal condition,” and “artificial nutrition and hydration” as used in the form.
Medical Powers of Attorney
As the name implies, a Medical Power of Attorney (MPOA) permits another individual to make medical decisions on your behalf when you become incompetent. The procedure for implementing an MPOA differs from the others because the statute contains two prescribed forms. The first, known as the Disclosure Statement, must be read and understood before the second, the actual MPOA, is read and signed.
The Disclosure Statement explains the importance of understanding the MPOA before signing it. The agent’s (the person you appoint to make your medical decisions) authority begins when a doctor certifies your incompetence to make health care decisions. This certification must be placed in your medical record. The agent is then obligated to follow the instructions set forth in the MPOA (the second form) in making medical decisions on your behalf.
After signing the MPOA, you have the continued right to make health care decisions as long as you are competent. As long as you are competent, you have the right to revoke the document by informing the agent orally or in writing, or by executing a subsequent MPOA. The appointment of your spouse as agent terminates if you subsequently divorce or have the marriage annulled unless you direct otherwise.
The form allows you to designate alternate agent(s) and to limit the duration of the power granted. Without a termination date, the Power of Attorney exists indefinitely from the date it is signed. But, if you insert a termination date and are incompetent when the MPOA expires, the agent’s authority continues until you become competent, if ever.
by Judon Fambrough, Reprinted with Permission from the Real Estate Center at Texas A&M University
Fambrough (judon@tamu.edu) is a member of the State Bar of Texas and a lawyer with the Real Estate Center at Texas A&M University.