Your will does nothing while you are alive: powers of attorney and medical directives

Yes, and they matter as much as the will

Yes. A will only takes effect at death, so it does nothing if you are alive but unable to manage your money or speak for yourself. In Texas, that gap is filled by three separate documents: a durable power of attorney for finances, a medical power of attorney for health care decisions, and a directive to physicians stating your wishes about life-sustaining treatment. Without them, your family may have to ask a court for authority to act, and doctors may have to follow a default order of decision-makers that may not match what you would choose.

In my practice, these documents are part of nearly every estate plan, for clients of every age and every level of wealth. This guide explains what each one does, how Texas requires them to be signed and what happens when they are missing. It is general information; talk to a licensed Texas attorney about your own situation.

The durable power of attorney: who handles your money

A power of attorney lets you name an agent to act for you in financial and legal matters: paying bills, managing accounts, dealing with insurance and taxes, handling property. The word durable is the important one. TexasLawHelp.org explains that a durable power of attorney does not end if you become incapacitated, which is exactly when your family needs it.

The statutory Texas form gives the agent very broad powers, and TexasLawHelp.org advises getting a lawyer's help before signing it. All powers of attorney must be signed before a notary. If you want your agent to be able to sell or mortgage real estate, the document must meet additional requirements, including a legal description of the property and recording in the county deed records where the property is located.

Choose your agent carefully. This person can act in your name with your money. Many people name a spouse first and an adult child or trusted friend as the alternate, and some limit the agent's powers or require the agent to keep records.

When a financial power of attorney ends

TexasLawHelp.org lists the ways a power of attorney ends: on an end date stated in the document, on your incapacity if it is not durable, when you revoke it, when a court appoints a guardian of your estate, or at your death. That last point surprises people. Your agent's authority stops when you die, and from then on your executor, acting under your will, takes over.

This is why the two documents work as a pair. The power of attorney covers the period when you are alive but unable to act; the will covers what happens after.

It also means the agent should not wait for a crisis to learn where things are. A short written list of your accounts, advisors, insurance policies and recurring bills, kept with the power of attorney, lets your agent step in on a hard day without hunting through drawers or guessing at passwords.

• A stated end date in the document
• Incapacity, if the power is not durable
• Revocation by you
• Appointment of a guardian of your estate
• Your death, when your executor takes over

The medical power of attorney: who speaks to your doctors

A medical power of attorney names someone to make health care decisions for you when you cannot. TexasLawHelp.org explains that it begins when your doctor says in writing that you cannot make medical decisions for yourself, and that your agent's authority lasts only until you can make them again. Any competent adult can be your agent, except your doctor or health care provider, your residential care provider, or their employees unless they are your relative.

Texas requires you to sign it before two witnesses or have your signature acknowledged by a notary; you do not need both. You must also read and sign a disclosure statement. The witness rules are strict: one witness cannot be your agent, your doctor or the doctor's employee, a residential care provider or its employee, your spouse or any relative, someone who would inherit from you, or someone with a claim against your estate. Using a notary avoids most of those traps.

TexasLawHelp.org notes that you can revoke a medical power of attorney even if you cannot make your own medical decisions, and that if your spouse is your agent, the document ends automatically on divorce.

The person you pick matters more than the form. A good medical agent is someone who can stay calm in a hospital hallway, ask doctors hard questions, and carry out your wishes even when other relatives disagree. That is not always the closest relative, and it is not always the same person who would handle your money well. Once you choose, have a real conversation with them about what you would want, so that the document is backed by an understanding.

The directive to physicians: your wishes in writing

The directive to physicians, often called a living will, is different from a medical power of attorney. TexasLawHelp.org describes it as a document stating your wishes about withdrawing or withholding life-sustaining procedures when you have a terminal or irreversible condition. The medical power of attorney names a person; the directive records your instructions.

Having both is the strongest arrangement. Your directive tells your doctors and your agent what you want in the hardest circumstances, and your agent handles everything else, including the many decisions the directive does not address. It also spares your family from guessing, which is often the greatest kindness a plan provides.

One more document some people need: the out-of-hospital DNR

TexasLawHelp.org describes an out-of-hospital do-not-resuscitate order as a document that tells emergency medical professionals not to resuscitate you, while still allowing comfort care. It is honored by emergency medical personnel, not by hospital staff. It is generally relevant for people with serious illness who want to avoid resuscitation at home or in transport, and it involves the attending physician. If that describes you or a parent, ask both your doctor and your attorney about it.

What happens when these documents are missing

Without a medical power of attorney, Texas does not leave doctors without anyone to ask. TexasLawHelp.org explains that if you are in a hospital, nursing home or similar facility and cannot communicate, consent for treatment can come from a list of people in order: your spouse, an adult child or a majority of reasonably available adult children, your parents, a person you clearly identified before becoming incapacitated, and your nearest living relative or a member of the clergy. In case of disagreement, the probate judge decides.

That default order may work fine. It may also put a decision in the hands of someone you would never have chosen, or leave adult children deadlocked at a bedside. On the financial side, there is no comparable shortcut. TexasLawHelp.org notes that with a durable power of attorney the court may not have to name a guardian for you, which tells you what often happens without one: a guardianship proceeding in probate court, with its own cost, delay and ongoing court supervision.

Common gaps I find when I review these papers

Many people already have some version of these documents, often signed years ago or downloaded during a hospital admission. When I review them, the same gaps come up again and again.

• A financial power of attorney that is not durable, so it ends at the moment it is needed
• An agent who has died, moved away or become unable to serve, with no alternate named
• A former spouse still named as agent
• A medical power of attorney with a witness who was not eligible
• A directive that no one in the family knows exists
• Documents signed in another state that may not fit Texas requirements
• Real estate powers without the property description and recording they require

Keeping them current and findable

Give copies of your medical power of attorney and directive to your agent and your doctors, and keep the originals somewhere your family can reach quickly, not in a safe deposit box no one can open on a weekend. Tell your financial agent where the power of attorney is and which banks and advisors you use.

Review these documents whenever your family changes, and at least every few years. A marriage, a divorce, a move to Texas or an agent's illness each calls for a fresh look. I go through the full list of life changes in the life changes that mean a will is out of date, and it applies to these documents as well.

If you are pricing a complete plan, my guide to what a will or estate plan costs, and what moves the price explains how these documents fit into the package.

Putting them in place with me

I practice alone from my office on Plano Road in the Lake Highlands area of Dallas, and I meet with people from Dallas and the northern and eastern suburbs. When we prepare these documents, I ask who you trust for money and who you trust for medical decisions, which are not always the same person, and we talk through your wishes about treatment in plain language. We sign with the notary and witness formalities Texas requires, and you leave knowing who has copies.

If you are still deciding which attorney to use for this work, the questions worth asking before you hire an estate planning attorney is a good place to start. For advice on your own documents, talk to a licensed Texas attorney who has heard your situation.

Questions people ask me