Chief Reporter (2018 – 2019)
Marriage is more than two people falling in love and exchanging vows. Marriage is, according to Julie Johnson, betting someone half your stuff that you will love them forever.1 Marriage is complicated and messy and full of incredible challenges—many of which most couples fail to properly anticipate for—and spouses are then left wondering what should be done in an emergency situation.
Most couples consider prenuptial agreements, wills, and their community property2 before officially tying the knot. However, few consider signing a durable power of attorney (“POA”). A power of attorney is a legal form that grants another person the control to make decisions on your behalf.3 If you or your spouse become incapacitated, meaning you cannot make decisions for yourself due to a medical emergency or physical or mental disability, then the person whom you have entrusted with this power of attorney can step in and make those decisions for you.
There are approximately five recognized POA types.4 Each type allows the agent, or person accountable for making decisions on behalf of the incapacitated person, different levels of responsibility. The most commonly used types are a medical POA and a durable POA. A medical POA allows a spouse to make decisions on behalf of the incapacitated spouse until the incapacitated spouse is able to make their own decisions. For example, a person in a car accident, who arrives unconscious to the hospital and falls into a coma, can have their spouse make all medical decisions regarding their care. If the injured spouse is in a coma for a considerable amount of time though, the medical power of attorney does not extend to other financial decisions.
It is critical for couples to plan for worst-case scenarios. Simply being married to one another does not mean that a spouse can make binding decisions for the other one. Looking at previous example, if the spouse in a coma is responsible for paying the mortgage from their separate bank account, where the uninjured spouse cannot access the funds, then the payment for the couple’s home may not process and could have negative results on the couple’s payment history and credit score.
To avoid a case like this, each spouse should consider signing a durable power of attorney. A durable POA is a legal document that allows a person to assign another individual to make important decisions on their behalf. A durable power of attorney does not end if you are incapacitated. It can be used for business and financial decisions, and in some cases, can also include medical decisions. A durable POA must (1) be in writing, (2) name the person you want to be your agent (decision maker), (3) state how the power of attorney is to be used, and (4) be signed and notarized.5 Unless you revoke, or take away, the designated agent’s power before becoming incapacitated, the POA will remain in effect. Because the agent, or person responsible for making financial and medical decisions on behalf of the incapacitated person, is granted so much power in these matters, it is important to choose someone trustworthy and reliable. In cases with married couples, many choose their partner to make these decisions and assign them the responsibility. It is not necessary to choose your spouse as the designated power of attorney, but many times, it is the most likely choice.
To prepare yourself for emergency situations, it is best to have a power of attorney in place. Discuss your wishes, both medical and financial, with your spouse or designated agent; it is critical for them to be aware of your feelings on medical procedures and expenses. Once you have spoken to your desired agent regarding their duties, then you should seek professional help with drafting the proper paperwork. You can find the statutory durable power of attorney form on the Texas Health and Human Services website.6
Before making any specific decisions regarding the assignment of your medical and durable power of attorney, be sure to speak to a lawyer. Your attorney will explain what powers you are giving the other person before you sign any power of attorney documents.
1 Julie Johnson, Like Gravity (2013).
2 V.T.C.A., Family Code § 3.102.
3 Texas Law Help, https://texaslawhelp.org/article/powers-attorney-information-and-answers.
6 Texas Health and Human Services, https://hhs.texas.gov/laws-regulations/forms/miscellaneous/sdpoa-statutory-durable-power-attorney (last visited May 23, 2019).