The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.
Previously, I have written about the importance of having a Texas power of attorney and a Last Will and Testament. In Texas, these instruments are unique and vital if an emergency arises and the person of your choice needs to assist you. I prepare a great many of these for my clients’ estate planning, however, I can’t stress enough the importance of knowing where these instruments are located.
An emergency can occur at any time. Even Christmas Eve. Suppose you had to go to the emergency room during this pandemic and, as a result, were admitted to the hospital. Would you’re the person you have designated in your powers of attorney have the documents he or she needs to take care of your important affairs?
I stress to my clients that they should give copies of their Texas power of attorney documents to those they have asked to take care of them. Without these documents, your agent may not be able to adequately take care of you or your property.
If you have not experienced a hospital stay during these pandemic times, then you are in for a surprise. You will not be able to see your loved ones once admitted. Furthermore, in order for them to talk to the nurses or doctors, they must deal with the Health Insurance Portability and Accountability Act (HIPAA). Hospital staff access is limited due to the pandemic and when your agent does speak to them, they will ask for a “code” issued to each patient. If the patient is able to communicate this “code” to their agent, then your agent will be able to talk to the doctors. However, if the patient is unable to communicate, then without the “code” your agent is in the dark.
A well written Texas power of attorney contains a section for healthcare and should address HIPAA requirements as well. With this, then even if you are unable to communicate to your agent, they will have the ability to discuss your health and treatment with the hospital staff.
Similarly, a well written Texas power of attorney has a section dealing with your property, finances, insurance and benefits. This section of the Texas power of attorney should contain explanations of the authority you are giving your agent and not just a list. A list may be interpreted in many different ways.
Note that a power of attorney is not valid unless it is signed in the presence of two or more qualified witnesses. The following persons may not act as witnesses:(1) The person you have designated as your agent;(2) A person related to you by blood or marriage; A person entitled to any part of your estate after your death under a Will or Codicil executed by you or by operation of law;(3) Your attending physician;(4) An employee of your attending physician;(5) An employee of a health care facility in which you are a patient if the employee is providing direct patient care to you or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility; or,(6) A person who, at the time this power of attorney is executed, has a claim against any part of your estate after your death.
Be sure to read that list above carefully. Noting that a power of attorney signed in a hospital or medical facility is not valid if witnessed by staff or employees of that office. Therefore, you should have these instruments prepared before the need arises. Most importantly, these instruments do no good buried in a desk or drawer. Give them to your agents so that they can quickly act in an emergency. Regardless of a pandemic or not, your chosen agent needs to be able to act quickly.
Anyone can fall off a ladder, suffer a stroke, or be the victim of an accident. Age has no bearing on this. These cases are good examples of why planning ahead and having a Durable Power of Attorney, Medical Power of Attorney and Directive to Physicians, Family and Surrogates is important.
If you would like to plan ahead and have one or all of the instruments discussed in this column prepared, be aware Texas law places certain requirements as to the form of the documents discussed. Therefore, you should consult an attorney. Note, if you had any of these documents prepared for you while you resided in a different state, you should have a Texas attorney review the documents to make sure they comply with Texas law.
Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com