Advance Directives Questions
Statutory Durable Power of Attorney
What is a Statutory Durable Power of Attorney?
The “power of attorney” (1) designates another person as your attorney in fact or your agent; (2) is signed by you; (3) contains words showing that you authorize your agent to act for and in place of yourself when you cannot or are unable to act for yourself, such as in periods of incapacity or disability; and (4) is acknowledged before a notary public. In this document, you appoint an agent to make financial decisions when you are unable to make them yourselves.
Why is a power of attorney statutory and durable?
The Statutory Durable Power of Attorney derives its powers from the Durable Power of Attorney Act in the Texas Probate Code, Chapter XII, Sections 481-506. It is statutory because it is mandated by the Texas legislature. It is durable because it does not end over time unless you specifically state a time limitation or a date certain.
What are the effects of an Agent or Attorney in Fact during my incapacity or disability?
ALL acts done by your agent pursuant to this power of attorney during any period of your disability or incapacity will have the same effect as if you did the acts yourself and will bind you and your successors.
When do I record my Durable Power of Attorney?
If you have real property transactions, you must record the Durable Power of Attorney in the office of the county clerk of the county in which the property is located.
Return to top
Medical Power of Attorney
What is a Medical Power of Attorney?
The Medical Power of Attorney is similar to the Durable Power of Attorney in that your agent may make any health care decision on your behalf that you could make if you were competent. The Medical Power of Attorney limits your agent to making only medical decisions.
Can my agent make medical decisions for me at any time?
No. Your agent may exercise authority only if your attending physician (primary doctor) certifies in writing and files the certification in your medical record, that based upon the doctor’s reasonable medical judgment, you are incompetent.
How do I know that my agent will make the right medical decisions for me?
You must be able to trust your agent completely before appointing that individual as your agent for medical care decisions. Also, after consulting with your doctor and other health care providers, your agent MUST make a health care decision according to the agent’s knowledge of your wishes, including your religious and moral beliefs. If the agent does not know your wishes, then the agent must make health care decisions for you according to the agent’s assessment of your best interest.
Are there limits to my agent’s powers in making health care decisions for me?
You may place limits on your agent’s decision making powers in Medical Power of Attorney document. Additionally, your agent may not consent to voluntary inpatient mental health services, convulsive treatment, psychosurgery, abortion, or neglect of you through omission of care.
How long does a Medical Power of Attorney last?
A medical power of attorney is effective indefinitely upon execution and delivery of the document to the agent, unless it is revoked by you or you become competent.
Who may be my agent in my Medical Power of Attorney?
Most people, including trusted family members and friends, may be your agent(s) in the Medical Power of Attorney, except your health care provider, an employee of your health care provider unless the person is your relative, your residential health care provider, or an employee of your residential health care provider.
Do I have to have a witness to my Medical Power of Attorney?
Yes. The medical power of attorney must be signed by you in front of 2 witnesses. The witnesses must sign the document.
What if I can’t physically sign my Medical Power of Attorney?
If you are unable to sign, another person may sign the medical power of attorney with your name in your presence and at your express direction.
What are the duties of the health or residential care provider?
A. A provider and its employee who knows of the existence of your medical power of attorney MUST follow the agent’s directive if it is consistent with your desires and the medical power of attorney.
B. The doctor does not have a duty to verify that the agent’s directive is consistent with your wishes or religious or moral beliefs.
C. A provider who finds it impossible to follow your agent’s directive because of a conflict with the law or your medical power of attorney MUST inform your agent as soon as is reasonably possible. If your agent does not agree, your agent may select another doctor.
D. A provider who is not a doctor to MAY NOT act in a manner contrary to a doctor’s order.
Return to top
Directive to Physicians
What is a Directive to Physicians?
It is a document executed by a competent adult to physicians or doctors on whether they should provide or withhold life sustaining treatments.
When making a Directive to Physicians, do I have to have a witness?
You must sign the directive in front of 2 witnesses, and the witnesses must also sign the directive.
Can I appoint agents to make health care decisions for me if I can’t make the decisions myself?
Yes. You may include in the specific directions other those provided and may designate an agent to make a treatment decision for you in the event you become incompetent, or otherwise mentally or physically incapable of communication.
Do I have to let my doctor know about this document?
You MUST notify the attending physician (your doctor) of the existence of a written directive. If you are incompetent, or otherwise mentally or physically incapable of communication, another person may notify your physician of the existence of the written directive.
Should I give my doctor a copy of this document?
Absolutely! Your doctor MUST make the directive a part of your medical record.
Can I give a non-written or oral medical directive?
Yes, you may issue an oral directive if you are competent, if you make the oral directive in the presence of your physician and 2 witnesses, and the physician MUST make the fact of the existence of the directive a part of your medical record, and the names of the witnesses MUST be entered in the medical record.
Does the Directive to Physicians have to be notarized or acknowledged by a notary public?
No. A written Directive to Physician is effective without a notarized signature. Also a physician, health care facility, or health care professional may not require that a directive be notarized, or that you use a their forms.
How long does a directive last?
A directive is effective until it is revoked.
How do I revoke a directive?
You may revoke a directive at any time without regard to your mental state or competency. A directive may be revoked by you or someone in your presence and at your direction by canceling, defacing, obliterating, burning, tearing, or otherwise destroying the directive. You may also revoke the directive by signing and dating a written revocation that expresses your intent to revoke the directive, or you orally state your intent to revoke the directive.
Return to top
Declaration of Guardianship
What is a Declaration of Guardianship?
A Declaration of Guardianship is a document that declares to the courts your preference of an agent who will look over your person and your estate when you are incapacitated or incompetent. It serves the same purpose as the Financial and Medical Power of Attorney
Why do a Guardianship Declaration?
The document assists the Court in determining who should be the guardian of your person and your estate, and bolters your decision making if you ever encounter conflict with your family. It also gives you additional power to DISQUALIFY an individual from being your guardian.
Return to top
Disposition of Remains
What is an Appointment of Agent To Control Disposition Of Remains?
This is a document that you have to appoint a trusted individual to control the disposition of your remains after your death.
Why should I execute a Disposition of Remains?
You should execute a Disposition of Remains if you want to declare whether you want your remains cremated, buried, etc., and you want to appoint an agent to follow through with your funerary directives.
Does the agent have to be a family member?
No. An agent can be someone other than a family member.
Who pays for the funeral expenses if I execute this document?
Generally, you do. But, if you do not have enough money in your estate to cover funeral expenses, then the funeral home will look to the agent you appointed in Disposition of Remains to cover the costs. Therefore, when you execute this document and appoint your agent(s), your agent(s) must be willing to be personally liable for the expenses and accepts this financial responsibility by signing the document too. Please note that some funeral homes will not accept this document.
|
