The Differences Between Power of Attorney (POA), Personal Directives, and Guardianship

Each state in the US has unique laws regarding these legal documents, which can significantly impact your decisions for yourself or your loved ones. This article will delve into the specific duties and requirements of Power of Attorney (POA), personal directives, and guardianship, providing insights and examples based on experiences in Texas.

Power of Attorney (POA) in Texas

In Texas, a Power of Attorney (POA) can take two major forms: a medical POA and a financial POA. Each serves distinct purposes and comes with unique responsibilities and expectations.

Medical POA

The medical POA allows the named agent to make healthcare decisions on behalf of an individual who is incapacitated, either mentally or physically. This can be a crucial role, especially for older adults or those with serious health conditions. For example, I served as a POA for an elderly man who was nearing the end of his life. Due to his declining mental state and various health issues, I had to make several difficult decisions, even including how to handle his end-of-life care. This required constant communication with doctors, making treatment decisions, and ensuring the man’s comfort. Also, it's essential to ensure all relevant care staff are informed of such decisions.

Financial POA

The financial POA empowers the agent to manage an individual's financial affairs when they are incapacitated. For instance, when I managed the POA for my husband's unmarried cousin, he was struggling with health issues and was unable to take care of his finances. I had to take over all his financial responsibilities, from paying bills and managing investments to handling his daily expenses. This involved a significant amount of work and a deep understanding of the individual's financial situation.

Personal Directives

A personal directive is often related to end-of-life decisions, such as a DNR order. It allows the individual to express their wishes regarding medical treatments and can often be made in advance to ensure clear communication and respect for their choices. For the cousin mentioned, a personal directive was created, stating that no resuscitative measures should be taken if his condition worsened. This decision was based on the understanding of his declining condition and his desire for a peaceful passing.

Guardianship in Texas

A guardianship occurs when a judge oversees the management of an incapacitated individual's affairs. This is a more formal and judicial process, requiring annual reports and court approvals. When I took care of 5 individuals in their final days, I initially avoided guardianship due to the costs and court control, preferring instead to act as a POA. However, even without formal guardianship, the responsibilities were still significant, and the costs and involvement were substantial.

The Importance of Proper Planning

Instead of waiting until the unexpected happens, it's crucial to plan ahead. Consulting with a probate or estate planning attorney can help ensure that you have the necessary legal documents in place. Here are some key recommendations:

Legal Consultation: Speak to a legal professional who specializes in elder law to determine what arrangements you need or want. Recognize Responsibility: Being a POA comes with significant responsibilities, including a fiduciary duty. Make sure you fully understand your obligations before agreeing to serve. Preemptive Planning: Have valid powers of attorney for medical decisions and financial matters. Update these documents regularly, and ensure that trusted individuals are named and willing to take on the role. Communication: Keep important documents accessible. Avoid leaving sole copies in a safety deposit box where loved ones may not have access. Distribute Copies: Provide notarized copies to family members and store the originals securely and clearly labeled.

Avoiding Backup Scenarios

While it’s important to have POA and personal directives in place, it’s equally crucial to avoid unsuitable scenarios. For example, a neighbor who checked on an elderly man daily and even helped financially ended up having legal issues. They were sued for taking advantage of the man, claiming 'undue influence.' This situation highlights the risks of informal helping and the importance of legal oversight.

Finally, always have a backup plan named in your POA. An 85-year-old sister living 400 miles away may not be the best choice, as she may not be able to manage the responsibilities. Choose individuals who are willing and able to take on these roles, and consider having multiple backups.

By taking these steps today, you can help ensure that your wishes and those of your loved ones are respected in the future.