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Understanding power of attorney may help with elder law issues

It's never easy to watch your parents enter the final years of their lives. If you're like many adult children in Texas, you try your best to provide support and care to them as needed. Beyond the emotional bonds you have with your parents, however, it can be quite challenging to address the various elder law issues that may arise as you help them get their finances and estate in order so they can live out their golden years with as little stress as possible.   

Your parents may ask you to serve in numerous legal capacities, such as executor of their estate or under a particular power of attorney. The latter is an often-misunderstood term that can create complications (or disputes) if one does not seek legal clarification. If your mother or father wishes to designate you as a power of attorney in his or her Texas estate plan, it's unwise to accept the responsibility if you do not clearly and fully understand the obligations and responsibilities inherent in your acceptance.  

Get the basic facts before signing anything 

A power of attorney is a document. Most Texas estate plans include numerous documents, and some, like a power of attorney, fall under the same title but serve different purposes. The following facts help clarify POA and may help you avoid confusion as you care for your loved ones

  • The law refers to your parent as a principal when he or she is naming someone in an estate plan to act on his or her behalf. 
  • If you agree to act under power of attorney, you become an agent in your parent's plan. 
  • Power of attorney does not give someone the authority to act on another person's behalf if that person remains of sound mind and physical capability.
  • You may act under power of attorney when the principal party becomes incapacitated and unable to make his or her own decisions.
  • The two main types of powers of attorney are medical and financial. 
  • Your parent may name you as an agent in both capacities or one. 
  • Both documents are customizable, meaning your parent may include instructions that expressly pertain to particular personal goals or wishes.
  • A medical power of attorney can give you the authority to have your parent cared for by a particular medical practice or care provider. 
  • Some issues intersect between powers of attorney, such as residence. There may be medical and/or financial reasons for choosing a particular nursing home, for instance.
  • If the same person is not agent in both types of powers of attorney, such situations can lead to disputes.  

You may have authority to act on your parent's behalf in medical or financial matters when he or she is unable to do so. You cannot change the principal's will. Powers of attorney remain active while the principal is living. If your parent dies without a will, you can file a petition, requesting that the court name you as administrator of the estate. Matters concerning powers of attorney or estate plans can be complex. This is why most adult children seek experienced guidance when caring for their aging parents.

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