The person you trust most may not be the best person to manage your affairs if you become incapacitated. You need someone reliable, willing to act, able to make difficult decisions, and suited to the responsibilities you give them. In Texas, you can name one person under a durable power of attorney to handle financial matters and another under a medical power of attorney to make health care decisions.
At The Law Office of Whitney L. Thompson, we help individuals and families in Houston plan for the possibility that illness, injury, or another change could leave them unable to manage their own affairs. Our seasoned attorney will listen to your unique circumstances and develop a plan for you and your family. Schedule a consultation today to learn about all of your options.
Decide What You Need the Person to Manage
Before choosing someone, identify the decisions that person may need to make. Managing your financial affairs and making health care decisions are different responsibilities, and Texas estate planning documents can assign them separately.
A durable power of attorney can authorize an agent to handle specified property and financial matters for you. Depending on the powers you grant, that might include managing accounts, paying bills, handling real estate transactions, or addressing other financial matters. Texas law allows a durable power of attorney to remain effective even after your disability or incapacity.
A medical power of attorney serves a different purpose. According to Texas Health and Human Services, it lets you name an agent to make health care decisions for you when you can no longer make them yourself. In Texas, a medical power of attorney must generally be signed in the presence of two qualified witnesses or acknowledged before a notary public.
Someone who is organized and careful with money may be a strong financial agent but not the person you want making medical decisions. You do not have to choose the same person for both jobs.
Choose Someone Who Can Make Decisions the Way You Would
Trust matters, but it is only the starting point. Your agent may eventually have to make decisions when you cannot explain what you want. Choose someone who knows your priorities, respects your instructions, and can separate your wishes from what they personally would choose.
For a financial agent, consider whether the person is organized, dependable, and comfortable handling records and financial matters. Under Texas law, a person acting as your agent under a durable power of attorney is a fiduciary and has duties to inform you and account for actions taken under the power of attorney.
For a medical agent, think about whether the person can communicate with doctors, ask questions, understand your treatment preferences, and advocate for your wishes. Under Texas law, your medical agent can exercise authority only after your attending physician certifies in writing that you cannot make your own health care decisions.
Your agent must then make decisions based on your known wishes, including your religious and moral beliefs, or on your best interests if your wishes are unknown. That makes it particularly important to choose someone who knows what matters to you and is prepared to follow your choices rather than substitute their own.
Consider Whether the Person Is Available and Willing to Serve
An excellent choice on paper may not work if the person cannot realistically take on the responsibility. Before naming someone, talk to them.
Explain what you are asking them to do and make sure they are willing to serve. Consider where they live, how easy they are to reach, their existing responsibilities, and whether they'll likely remain available if you need help years from now.
These conversations are part of estate planning because they help the people you choose understand their roles before they need to act.
Check Whether Your Choice Can Legally Serve
Personal trust does not override legal restrictions. Texas law places limits on who may exercise authority in certain roles.
For example, Texas Health and Safety Code Section 166.153 provides that a person cannot exercise authority as your medical power of attorney agent while serving as your health care provider or residential care provider. An employee of either provider also cannot exercise that authority unless the employee is your relative.
Name a Backup in Case Your First Choice Cannot Serve
Your first choice may be unavailable when you need them. The person could become ill, move away, die before you, or simply decide that they cannot take responsibility. Naming a successor agent adds another layer of protection.
Your choices should not remain static either. A person who made sense when you signed your documents 10 years ago may no longer be the best choice today. Relationships, health, finances, and family circumstances change. Reviewing your agents periodically and after major life events can keep your plan aligned with your current circumstances.
Planning Ahead May Reduce the Need for Guardianship
Without effective planning documents or another suitable alternative, your family may have to consider guardianship if you lose the ability to manage your affairs.
Texas treats guardianship as a court process, and courts generally consider less restrictive alternatives before imposing guardianship. A durable power of attorney and medical power of attorney are among the planning tools that may provide authority without requiring a guardian for the same decisions, although a power of attorney does not guarantee that guardianship will never become necessary.
You can also make your preferences known in case a guardian is eventually necessary. Under Texas Estates Code Section 1104.202, you may designate in advance someone to serve as guardian of your person or estate if you later become incapacitated. You may also name one or more people you do not want to serve, and a court may not appoint someone you have expressly disqualified. Your preferred guardian generally has priority, although the court can decline to appoint that person if the person is disqualified or would not serve your best interests.
Prepare for Incapacity with Whitney L. Thompson
Choosing an agent means deciding who could speak and act for you when you cannot. We can help you think through that choice, decide whether different people should handle your financial and medical affairs, and put the necessary authority in place.
At The Law Office of Whitney L. Thompson, we serve clients from our Houston and Bay City offices and throughout Brazoria, Fort Bend, Harris, Matagorda, Montgomery, Wharton, and Jackson Counties. Talk with our Houston estate planning attorney about who you want making decisions for you and how to give them the authority to do it.
