Do I need a Power of Attorney?

Posted by David Armstrong | Apr 19, 2022 | 0 Comments

Do I need a Power of Attorney?      

Most adults (especially Texas adults) are pretty self-sufficient, and believe, expect, and practically demand that we will be that way until the day we die.   But what about when disability, Alzheimer's, mental problems or the like become our fate in life?   This is a problem that can be alleviated with a couple simple documents. 

I am referring to ‘powers of attorney', documents that give someone else the right to act for the person conferring that power.   By signing the right document, I can give the right to my spouse, other family member, or a friend, to take care of my financial affairs, as well as to take care of my medical decisions, if I can't.   Without these documents, especially in the face of disabilities, taking care of any adult can be both very time consuming and very expensive.  

The first document I suggest to my clients is a durable power of attorney.   It is ‘durable' because it survives the client's disability.   After it is signed and in effect, the person who is given the power of attorney stands in the shoes of the giver, allowing financial decisions and actions to continue to be made for the benefit of the one giving the power.   For a medical power of attorney, the second document I suggest, the giver of the power of attorney gives the right to someone else to make medical decisions for them if the person giving the power of attorney is unable to make the decision him/herself.  

Why, though, is it important to have these documents in place now?   Even if you are younger, and in good health, with no threat of disability at all?   

First, you get to decide who is going to have such a power and responsibility for you.   If you don't do so, someone you don't want to exercise those powers over you may be given the right to do so.   You also can choose to put some limits on the powers you give, either in scope, or duration, or both. 

Second, if you fail to take care of this now, it could eventually have to be done for you.  This is a guardianship action.   Guardianships are very time consuming and very expensive, since it is a formal court action, with hearings, appointments, and annual reports.  A court appointed guardian can be avoided when you essentially set out the terms for someone to take care of your decisions now through appropriate powers of attorney.  

Third, none of us know the future, and whether we will face incapacity (being disabled) in that future.   Putting off signing these simple documents because you are in young and in good shape can end up being a poor decision--when you need the powers of attorney in place, you may no longer have the ability (capacity) to sign the documents.      

I recommend to my clients that they sign powers of attorney to alleviate these concerns about future disability/incapacity.  

About the Author

David Armstrong

J.D. University of Houston, 1995


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