As you are planning how to distribute your estate, there are many legal instruments to consider. These can help make potential future situations easier for you and your loved ones. One of these is a medical power of attorney (POA). This can also be called an advance healthcare directive or, more briefly, an advance directive.
There may come a time in our lives when we are unable to make our own medical decisions. This could occur as a result of injury, illness, or old age. While we can’t necessarily anticipate such a situation, we can plan ahead for it. A medical POA is a way to do just that.
Why Would I Want to Create a Medical Power of Attorney?
A medical POA is an advance directive regarding medical decisions to be made on your behalf in the event that you are unable to do so. The person you choose to make these decisions for you can be referred to as your agent or as your medical power of attorney. They would be able to make essentially any medical decision that you would be able to make yourself.
A medical POA takes effect immediately after you have delivered the signed document to your agent. They will only be able to make medical decisions on your behalf after your doctor has certified in writing that you are unable to do so yourself. Without a medical POA, your doctor would make decisions for you based on what they believe is best.
Since the need for a medical POA could occur at literally any moment, it’s never too soon to create one. By doing so, you will ensure that your wishes for your medical care are enacted. You will also help ease a time that may be highly emotional and difficult for your family and friends.
What Types of Decisions Can My Agent Make for Me?
The person you choose as your medical POA can make medical decisions on your behalf in virtually any area. This includes your specific preferences for or against any type of medical treatment. These can include decisions regarding:
Tests to be performed
Withholding treatment in an attempt to provide you comfort
Which doctors and healthcare facilities will treat you
Whether to keep you on life support
How aggressively conditions such as brain disease will be treated
Whether surgical procedures will be performed
Because of the nature of these decisions to be made on your behalf, it’s important to discuss them in advance, so your medical POA understands your wishes. You should also discuss any other related matters with them so they are fully aware of your desires. These may include aspects such as moral beliefs and religious beliefs.
Who Should I Choose as My Medical POA?
The person you choose to act as your agent must be at least 18 years old. You should choose someone that you trust will carry out your wishes as they make decisions for you. This could be a spouse, trusted friend, or close relative.
This person will carry a significant amount of responsibility, so you want to make sure you know them well. Consider people who you know will be calm under pressure. You want someone who will ask questions if they need more information to understand a situation. Above all, choose someone you trust to act with your best interest in mind.
What Do I Need in Order to Create a Medical POA?
Once you have decided that you wish to establish a medical POA, you will need to select the person who will act as your agent. There are several forms that will need to be completed to designate the person you choose as your medical POA. One of these is the Texas Health and Human Services Commission medical power of attorney form.
You should consult an experienced estate planning attorney to discuss your wishes. It’s important that you understand the implications of the estate planning choices you make today. There are laws that can impact your situation. In addition, you may also be well-served to consider creating a will or trust.
Suspecting that someone you trusted is abusing their power of attorney can be the cause of immense emotional anguish. However, power of attorney abuse does happen, and it is important to know how to handle the situation if you believe that someone is behaving unethically toward you or a loved one.
What Is Power of Attorney?
Power of attorney is a legal arrangement that provides a designated Agent to make legal decisions on behalf of another person (the Principal). Sometimes, for example, a particularly busy individual will give power of attorney to their financial planner so that they can sell and buy stocks on their behalf. In other cases, an Agent may be granted power of attorney if an older adult becomes incapacitated in some way.
What Is Power of Attorney Abuse?
Power of attorney abuse occurs when the Agent is not acting in the best interest of the Principal. In many power of attorney abuse cases, the Agent is taking advantage of an older Principal for the Agent’s own financial gain.
Power of attorney abuse can come in the following forms:
Breach of fiduciary duty
Contesting Power of Attorney
If a family believes that an Agent is taking the Principal’s property for themselves, the family may seek to invalidate the Agent’s power of attorney. Sometimes these cases can be resolved between parties through negotiation or mediation. However, if these methods fail, it may be necessary to go to court.
Proving Power of Attorney Abuse
Agents who have power of attorney are legally obligated to act in and for the best interest of the Principal. For this reason, financial records can usually make it clear when power of attorney abuse has happened because they will demonstrate that the Agent has gained something at the expense of the Principal. As soon as the Agent behaves in a manner that results in their own personal gain rather than that of the Principal, this constitutes a breach of the Agent’s fiduciary duty.
There are several signs that an Agent may be abusing their power of attorney, such as:
A sudden change in the Principal’s financial position
An Agent who refuses to share information or records with the Principal
An Agent who demands that the Principal sign unexplained or unfamiliar documents
Identity theft, financial exploitation, or fraud
If you notice any of these signs, it is essential that you contact an experienced lawyer as soon as possible. They will be able to investigate the matter and determine whether there is serious cause for concern. If an estate litigation attorney suspects that power of attorney abuse is occurring, they can send the Agent legal communications that may be enough to bring the abuse to a halt.
Will a Person Who Commits Power of Attorney Abuse Go to Jail?
Power of attorney abuse is considered a civil matter rather than a criminal one. For this reason, those who commit power of attorney abuse generally will not face any criminal charges and will therefore not go to jail.
Mediation, Negotiation, and Civil Court Proceedings
If court proceedings begin in power of attorney abuse cases, they will take place in a civil court. However, most estate litigation attorneys attempt to handle power of attorney abuse cases via mediation or negotiated settlements. This is because they can be resolved more quickly and at a much lower financial cost outside of court. Sometimes, once an Agent is confronted with evidence of power of attorney abuse, they will willingly return financial assets to avoid being taken to court.
If the Agent denies that they have committed power of attorney abuse, civil court proceedings become more likely. These proceedings can be time-consuming and expensive. However, experienced estate litigation attorneys will generally recommend taking a case to civil court if they expect that the assets recovered will exceed the court costs and attorney fees.
Contact an Experienced Estate Litigation Attorney Today
If you believe that you or a loved one may be the victim of power of attorney abuse, the Dallas estate litigation lawyers of Staubus and Randall are here to help. Our experienced legal team has helped many clients across the state of Texas reach favorable outcomes in matters involving power of attorney abuse, fraud, and exploitation. We are ready to do the same for you.
We will fight for your best interests at every step of the process. Contact us for a case evaluation by calling 214-691-3411 today. We look forward to helping you through this difficult time.
A power of attorney (POA) is a legal document giving your chosen attorney-in-fact or agent the authority to handle your affairs based on your best interests in specific situations. Terminal illness, cognitive decline, and traumatic accidents are a few of the common reasons creating a POA could be beneficial.
While drafting a POA, it’s crucial to outline what you want to happen in specific scenarios clearly. For example, if you’re in a car crash and end up in a coma, you should state how you want the situation to be handled. Depending on the type of power of attorney you create, your appointed agent can manage your business, financial, or medical affairs, or all three.
Abuse of a Power of Attorney
When you decide who you want to choose as your agent, it should be a person you trust completely. It should also be someone you know will carry out your wishes regardless of their feelings or opinions about them. Your designated agent could have access to your bank accounts and legally sign documents associated with your healthcare, financial affairs, and legal matters.
Although a power of attorney defines the agent’s role, their authority over someone else’s decisions can lead to abuse. If you become incapacitated, your agent could gift themselves with your assets. Or you might have to leave the country for a business trip, and your agent could decide to use your finances for personal gain in your absence.
Common Types of Power of Attorney Abuse
It’s an unpleasant and disturbing feeling when you realize the person you’ve entrusted with a significant responsibility has betrayed you. You thought they would always act in your best interests and protect you. However, you might have noticed signs that your chosen agent has violated your trust and abused their position in your life.
Power of attorney abuse can take many forms. The most common types you should watch for include:
Identity theft – An agent can use the access they have to your personal information to open a new bank account, credit line, or investment account with your POA document.
Breach of fiduciary duty – The agent or attorney-in-fact has a fiduciary duty to act in your best interest from the moment the POA becomes effective. If they breach their duty in any way, they could be liable for lost money or assets.
Embezzlement – Under certain circumstances, a financial POA grants the agent authority over every financial aspect of a person’s life. With complete access, the agent can embezzle funds from your account into theirs or transfer property that is supposed to go to your named beneficiaries.
Medical abuse – A medical power of attorney gives the chosen agent the responsibility of deciding your medical treatment when necessary. If you’re unconscious or incompetent, you can’t inform your doctors of the healthcare you want. Your agent might choose to move you into a nursing facility against your wishes or ask your doctors to use life-saving measures you don’t want.
Proving Power of Attorney Abuse Occurred
If you believe your appointed agent is abusing a power of attorney, you should take immediate legal action. You will need sufficient evidence to show the abuse occurred. With financial abuse, providing documentation showing the agent transferred money into their accounts without your approval or made unauthorized purchases with credit cards could be the proof you need.
It’s vital to hire an experienced power of attorney abuse lawyer to assist you with your lawsuit. If you want to recover the losses you suffered, you will need a knowledgeable legal team on your side to build a solid case against your agent. Your lawyer can also help you create a new power of attorney to protect you from abuse in the future.
Contact Staubus and Randall Today
Staubus and Randall has over 100 years of combined experience in estate planning and litigation. We can help you pursue legal action against the individual responsible for abusing their responsibilities as your POA agent. You should not suffer the consequences of their misconduct. We will provide the guidance and support you need to get through this devastating time in your life.
If you or your loved one was the victim of power of attorney abuse in Texas, do not hesitate to contact Staubus and Randall. We can review the circumstances to determine the available legal options and create a strategy to try to resolve the matter favorably. You can depend on our legal team to be your advocate and fight for the justice you deserve.
Call us at 214-691-3411 or reach out to us online today for your confidential consultation.
A power of attorney (POA) is a legal document granting someone the authority to manage your affairs if you’re unable to yourself. A POA can become effective once you sign the document or if a specific event occurs, such as incapacitation.
When you create a power of attorney, you can appoint an attorney-in-fact, also called an agent, to make decisions on your behalf. There are multiple types of POAs you can draft depending on the kind of affairs you want your agent to manage.
The agent you choose does not have to have a legal background. However, they must be at least 18 years old and of sound mind. You should pick someone you trust to make the decisions you would make regarding your assets, finances, medical care, and any circumstances that arise. Your agent should be a person you know will act in your best interest and who will be willing to carry out the wishes you outlined in the POA.
Types of Power of Attorney
There are different types of POAs. Each one has a unique purpose and offers distinct benefits. You can designate a different agent for each or one person to handle all of your affairs. The different types of power of attorney include:
Durable and non-durable POA
Medical, financial, or military POA
Durable and Non-Durable Power of Attorney
A durable POA goes into effect if you become incapacitated due to an accident or illness. The signed document allows the agent you choose to make specific decisions on your behalf.
You can decide whether you want your agent to have authority over your decisions upon signing the POA or when a medical provider deems you to be incompetent. You can also appoint a specific doctor you trust to determine whether you’re incompetent.
A non-durable POA is effective until you become incapacitated. If you don’t create another legal document to determine what should happen if you’re deemed incompetent, no one will have the authority to speak on your behalf if you can’t speak for yourself.
Limited Power of Attorney
A limited POA grants your designated agent authority over minimal matters. You can set the conditions for the affairs your agent can handle if a specific event occurs, such as when you experience a medical problem or take a business trip to another country. Instead of making all of your decisions, they can only make decisions based on predetermined circumstances.
The most common affairs listed in a limited POA include:
Facilitating business transactions
Selling real and personal property
Managing real estate
Springing Power of Attorney
A springing POA becomes effective when a healthcare professional deems you to be physically incapacitated or mentally incompetent. A qualified doctor must declare you mentally incompetent or physically incapacitated before your attorney-in-fact can make decisions on your behalf.
Medical, Financial, or Military Power of Attorney
A medical POA grants your agent the responsibility and authority over medical decisions. If you’re incompetent, unconscious, or unable to speak for yourself for any other reason, your appointed agent can communicate your wishes regarding healthcare to your doctors.
For example, if you have a strong opinion about life support, you can include that in your medical power of attorney. You might not want doctors to use extraordinary measures to keep you alive.
A financial POA allows your agent to make financial decisions on your behalf when specific situations prevent you from being present. For example, if you’re traveling abroad for an extended period, you can give your agent the authority to make important decisions about your finances in your absence.
You can even create a financial POA to kick in if you’re mentally incompetent or incapacitated and unable to make sound financial decisions.
A military POA allows someone you choose to manage your finances while you’re performing your military duties. That person can access your accounts, file taxes, and complete additional financial tasks if you cannot do those things yourself.
General Power of Attorney
A general POA is a broad power of attorney granting your attorney-in-fact authority over a range of decisions, such as:
Providing gift contributions
Purchasing life insurance
Managing business and financial transactions
Operating a business
Your designated agent can protect your interests and handle matters outlined in the document while you’re traveling, if you become incapacitated, and in various other situations.
Speak to an Experienced Estate Planning Lawyer Today
Contact an estate planning lawyer from Staubus and Randall immediately if you want to create a power of attorney and don’t know which one would be most beneficial for you. You need guidance to choose the right POA to cover your specific circumstances and to help you draft an enforceable legal document so no one can argue its validity. Call 214-691-3411 now for an appointment.
The attorneys at Staubus and Randall have over 100 years of combined experience in estate planning, probate, and litigation. We have the knowledge and skills to tackle complex legal issues, such as guardianships, will contests, fiduciary litigation, and trust litigation. We can also handle routine matters, such as estate administration, probating wills, heirship determinations, and other probate court matters.
Staubus and Randall received a preeminent AV rating from Martindale-Hubbell, which is the highest rating possible from a peer-rated legal service. This rating recognizes our hard work, dedication, and the case results we’re able to achieve.
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