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Like Pope Paul VI and Pope John Paul II, in 2013 Pope Francis prepared for incapacity. Now 86 and wheelchair bound, he knows that that day may come, and that he has arranged for it. After all, half of us over 85 experience dementia and more and more of us are living into our 90s.

Medical Power of Attorney: Ensuring Your Voice is Heard

Every adult Texan needs someone to voice their wishes when they cannot communicate. A Medical Power of Attorney, which can be downloaded for free from the Firm’s website, allows you to decide who that should be and provide their telephone number and address. You can also name two successor agents, “backups” should that person be unavailable or unwilling to serve. You can limit your agent’s authority, too. There may be certain decisions you do not want your agent to be able to make.

Consequences of Not Having a Medical Power of Attorney

What happens if you do not have a Medical Power of Attorney? You may well not get what you want. The Texas Health and Safety Code appoints people, in order of priority, to speak on your behalf. Will the person who is next in line voice your wishes or his own? If you have two “available adult children,” will they agree? What happens if they do not?

Durable Financial Power of Attorney: Managing Your Finances

If funds must be accessed to pay for your care or if someone may need to apply for Medicaid home health or for nursing home Medicaid on your behalf, you can appoint that person under a Durable [Financial] Power of Attorney. While Texas has a statutory form, it does not include the gifting powers which may be required in connection with Medicaid planning. It also does not specify that the person may hire home health providers, submit your tax return, redirect your mail, care for your pets or other things you may want. It does not address your retirement accounts or named beneficiaries on bank and brokerage accounts, CDs and life insurance policies. In addition, many people confuse the $17,000 (2023) federal gift tax exemption with the much lower ($200/month) amount above which it is presumed that you gave away money or things in order to qualify for Medicaid. This could disqualify you for months, possibly for years.

What happens if you do not have a Durable [Financial] Power of Attorney? If the doctor finds that you have experience cognitive decline to the point that you cannot manage your financial affairs, someone must seek guardianship. This is a time-consuming and expensive process.

Limitations of Statutory Forms in Financial Planning

For most people, most of the time, a properly executed Medical Power of Attorney and Durable [Financial] Power of Attorney are enough. But your agent under a Medical Power of Attorney cannot move you to a nursing home if you do not want to go there: only a guardian can do this. Your agent under a Durable [Financial] Power of Attorney cannot block your access to your own money and, by law, must report and give you an accounting of what he does. There are only two problems with this. First, too few agents report and provide accountings. Second, if you are impoverishing yourself by charity or by shopping, someone may need to seek a guardianship to preserve your assets for you.

Helpful Resource:
Why See an Elder Law Attorney When Making Your Estate Plan?


Elder law attorney, Terry Garrett, CELA, is a member of the National Academy of Elder Law Attorneys and is an Approved Guardianship Attorney. She assists people in elder law, estate and special needs planning, guardianship and settling estates. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.

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