A common question estate planning attorneys hear is what is the difference between a Medical Power of Attorney and a Durable Power of Attorney. First, a power of attorney, in general, is a legal document that gives another person (your “agent” or “attorney in fact”) the power to take certain actions in your name and on your behalf (you are known as the “principal”). A power of attorney can be very specific and limited in scope and duration, or it can be very broad and have no expiration date. Two of the most common types of powers of attorney, especially for estate planning purposes, are the Statutory Durable Power of Attorney and the Medical Power of Attorney.
Both the Statutory Durable and Medical Powers of Attorney are what are known as “durable” powers of attorney, meaning that they do not terminate if you are incapacitated (unable to make decisions for yourself). In fact, the Medical Power of Attorney only becomes effective when your attending physician certifies in writing that you are incapacitated and files the certification in your medical records. If you so elect, the Statutory Durable Power of Attorney may also be written to only take effect upon your incapacity. Instead of terminating if you are incapacitated (which is the general rule for powers of attorney in Texas), the Statutory Durable Power of Attorney only ends if a time limit is specified in the document creating the power of attorney; if the the principal revokes it; or if a guardian is appointed for you. The Medical Power of Attorney terminates at the end of a specified time period, if given; if the principal revokes it; if a guardian is appointed; or if the principal regains capacity.
These powers of attorney are usually drafted as preemptive measures to ensure that someone you trust will be able to take care of you and your affairs if you are no longer able to do so yourself. Specifically, these powers of attorney can help your loved ones avoid having to establish a guardianship on your behalf, which is both expensive and time consuming. Although both the Statutory Durable and Medical Powers of Attorney are used to help plan for a debilitating illness or injury, their objectives are quite different.
The Statutory Durable Power of Attorney must comport with the form provided in Texas Estates Code section 752.051, and gives your agent broad powers to handle most of your affairs. The powers listed in Texas Estates Code section 752.051 that may be granted to your agent in the Statutory Durable Power of Attorney are as follows:
- Real property transactions;
- Tangible personal property transactions;
- Stock and bond options;
- Commodity and option transactions
- Banking and other financial institution 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; or civil or military service;
- Retirement plan transactions;
- Tax matters; and
- Digital assets and the content of an electronic communication.
You may grant your agent any number of the powers listed above, from only one power to all of them. This also means that you can split these powers between more than one agent.
Although the powers granted to your agent in the Statutory Durable Power of Attorney are broad, it is important to note that the Statutory Durable Power of Attorney is not a “general power of attorney,” meaning that it covers only the powers listed and granted to your agent. It is not a catch-all that covers “any and all” issues that may arise in the future. It is important that you speak with an attorney before executing a Statutory Durable Power of Attorney to ensure that you understand the effects and limits of the powers granted to your agent. Most notably, the Statutory Durable Power of Attorney does not give your agent the authority to make medical decisions for you. That authority is handled by the Medical Power of Attorney, as discussed below.
In addition to the powers listed above, the Statutory Power of Attorney can be modified to either extend or limit these powers to meet your needs. For example, if you want to give your agent the power to handle personal property transactions, but you want to make sure that your agent does not sell your beloved classic Ferrari (we can all dream) or a specific gun from your firearms collection, you can specifically state in the Statutory Durable Power of Attorney that you agent may not sell that car or that specific gun (or prevent an agent from selling your firearms collection at all). Also, if you want to give your agent the power to make gifts from your property, you must specifically authorize your agent to do so.
As referenced above, the Medical Power of Attorney gives your agent the right to make medical and health care decisions for you. As stated earlier, the Medical Power of Attorney takes effect when your attending physician certifies in writing that you are incapacitated and cannot make health care decisions for yourself. Because the Medical Power of Attorney is a durable power of attorney, your agent retains this right until you are able to make health care decisions for yourself again. If you do not regain the capacity to make your own health care decisions, your agent will retain the power to make those decisions for you until your death or until a guardian is appointed for you.
Like the Statutory Durable Power of Attorney, an agent’s powers under a Medical Power of Attorney are very broad. Unless the Medical Power of Attorney limits your agent’s powers, your agent will have the authority to make most medical decisions for you. However, pursuant to Texas Health and Safety Code section 166.152(f), your agent acting under a Medical Power of Attorney may not consent to:
- Voluntary inpatient mental health services (your agent cannot agree to hospitalize you for mental health reasons);
- Convulsive treatment;
- Abortion; or
- Neglect of your care through the omission of care primarily intended to provide for your comfort (your agent cannot refuse case intended only to keep your comfortable).
Furthermore, a Medical Power of Attorney is not an Advance Directive to Physicians and Family or Surrogates, otherwise known as a Living Will. This document tells your doctors directly what kind of medical care you want should you become incapacitated and cannot make your own decisions. Usually, these documents specify a person’s wishes regarding life support and other similar treatment. The Medical Power of Attorney, as discussed, places this sort of decision-making power in the hands of your agent. Many people execute both a Directive to Physicians and Medical Power of Attorney. In cases where these two documents conflict with one another, doctors will comply with the most recent one (the one executed later in time). Consequently, if you want both a Directive to Physicians and a Medical Power of Attorney, you should make sure to limit your agent’s power to make decisions that conflict with your Directive to Physicians.
If you need assistance with preparing a Durable Power of Attorney or a Medical Power of Attorney, the estate planning attorneys at Fair and Fair, PLLC would be happy to help you. We offer online-based estate planning documents for the entire state of Texas. Please feel free to call us toll free at (281) 973-7255, fill out the contact form, or visit our Contact Page to schedule a free initial consultation.