Don’t Think You Need a Power of Attorney: Think Again! [Part I]

While many Texas residents put off the decision to engage in developing a comprehensive estate plan, procrastination in preparing estate planning documents like a living trust, advance medical directive or last will and testament can created serious problems when a person becomes incapacitated. The failure to engage in estate planning will also cause problems for family member who have no legal document to facilitate protecting their loved one’s medical or financial interests in the face of an event that causes mental incapacity. Anyone who is not inclined to develop an estate plan should at least consider a durable power of attorney. This affordable estate planning instrument can solve a multitude of potential problems regardless of one’s age or individual circumstances. In this two-part blog post, we outline some of the advantages of having a durable power of attorney.

Execution of Documents: There are times that you may be unable to execute contracts or financial documents that are time sensitive. This unavailability may be the result of traveling or business commitments. Regardless of the reason that you are unavailable, a durable power of attorney over financial issues can authorize someone to act in your place to execute contracts or conduct financial transactions when you are unavailable to sign the appropriate paperwork. While you may have some trepidation about authorizing others to engage in contractual and financial matters in your place, an experienced Texas Estate Planning Lawyer can carefully tailor the document to the amount of discretion and range of authority that you want to grant. The power of attorney can even be limited in terms of the period that it is effective. Although a person acting as your agent under a power of attorney for financial matters owes you a fiduciary duty, you should obviously exercise care in selecting the person who you appoint as your “attorney in fact.”

Traveling Children: If your children will be spending the summer with their favorite aunt or traveling with friends, you should provide the person who will be caring for your child with a power of attorney so that they can consent to medical care. While no one wants to seriously contemplate the prospect that one’s child will be involved in a motor vehicle accident or a fall while hiking, the unpleasant reality of a family member or friend of the family trying to locate you so that you can authorize medical treatment of your child is even more disturbing. The use of a power of attorney to give a family member temporary guardianship will also allow the person to execute documents that require parental consent for participation by a minor.

Medical Care for Personal Injury: If you are injured in a motor vehicle crash or other accident so that you are unconscious or in a coma, a durable power of attorney for medical decisions can empower the person of your choice to execute medical decision and authorize medical treatments and test on your behalf. While a family member could go to court and seek a guardianship, this process involves formal court proceedings and medical testimony so it can cause unnecessary delay and entail avoidable expense. If you have a durable power of attorney prepared and provided to the person that you wish to make medical decisions if you become unable to do so, this will make the process simple, efficient and inexpensive.

Management of Financial and Business Affairs: If you are suddenly incapacitated by a catastrophic medical emergency like a heart attack or stroke or suffer other injuries that render you incapable of managing your financial affairs, a Texas durable power of attorney can provide authorization to someone you select to manage your business or finances. Again, this can be done under court supervision when a family member or someone else close to you files for a guardianship, but this is comparatively costly and will result in delay so there may be no one with apparent authority to act to protect your financial interest in the interim. Further, the person who will watch out for your financial interest will be selected by a judge who may not appoint the person who you would choose if the decision were left up to you.

Once you have made the decision to have a durable power of attorney prepared, you must consider how to go about crafting this estate planning instrument. While many people use standard forms that can be obtained in office supply stores or self-help legal books, this can lead to disastrous results. There is no assurance that these documents comply with Texas law. Further, any pro-forma power of attorney form will be a crudely written catch-all document that may not meet your particular needs or concerns. The standardized form may be too broad and grant authority to perform tasks that you are not comfortable delegating or too narrow in failing to authorize crucial tasks.

When you retain experienced Texas Estate Planning Attorney Tom Reino, he discusses your specific objectives and so that he can customize a power of attorney to fit your unique situation. Further, you can be confident that the document will comply with Texas legal requirements. If you have questions or need estate planning documents prepared, we invite you to contact us at 817.303.2133 or send us an email at so that you can set up an initial consultation.


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