Powers of Attorney Help You Cope with Dementia and Alzheimer’s

What they are and how they work in Texas

By S.M. Oliva

As we get older, we often start to forget things. In many cases, this is not cause for alarm. But when a parent, spouse or other family member starts to suffer from regular memory loss—or exhibits difficulty in speaking or performing basic household tasks—they may be showing early signs of dementia or a related neurological disorder, such as Alzheimer's. If that’s the case, it’s critical for that person to have certain legal protections in place to ensure their personal and financial affairs are in capable hands.

Understanding the General Power of Attorney

When most people hear the phrase “estate planning,” they think about a last will and testament. But comprehensive estate planning is not just about making arrangements for after you pass away. It should also cover situations where you are physically or mentally incapacitated—e.g., you are suffering from dementia or Alzheimer's.

This is where powers of attorney come into play. A power of attorney is essentially a document where one person (the principal) gives power to another person (the agent) to make certain decisions on their behalf. Powers of attorney are not a substitute for a will. In fact, by law, a power of attorney terminates with the principal's death; these documents only have legal force while the principal is still alive.

There are several different types of powers of attorney. One of the more common forms is the statutory durable power of attorney. This is also known as a “general power of attorney” or “business power of attorney.” Basically, this is a document where the principal grants his or her agent broad authority to make decisions regarding property and finances. This can include the following:

  • buying, selling, or mortgaging the principal's property
  • accessing the principal's bank accounts
  • making stock, bond or commodity transactions
  • applying for government benefits, such as Social Security or Medicaid, on the principal's behalf
  • filing and paying the principal's taxes
  • operating the principal's business
  • making decisions regarding the principal's trust or estate plan
  • managing the principal's digital assets, such as e-mail or social media accounts

A general power of attorney may be drafted to take effect when it is signed (spouses commonly do this with respect to one another) or, alternatively, only when the principal is declared incompetent. And while a power of attorney does not need to be witnessed in the same manner as a will, it should be signed in the presence of a notary and recorded with the clerk of the Texas county where the principal maintains his or her primary residence.

Business vs. Medical Powers of Attorney

The general power of attorney described above excludes one key area: health care decisions. For this, you need a separate medical power of attorney. This document designates an agent to make health care decisions for you only in cases of incapacity—i.e., you are physically or mentally unable to communicate with your doctors. Even if you give the same person, such as your spouse, your general and medical powers of attorney, they are legally distinct documents. In other words, a person who is only designated as your agent under a business power of attorney has no authority to make health care decisions for you, and vice versa.

An experienced Texas elder law attorney can advise you further on the different types of powers of attorney and how they can benefit you in cases where you or a family member are incapacitated due to dementia or Alzheimer's disease.

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