Legal Documents to Assist Caregivers

Caregivers are often called on to manage the financial and healthcare decisions of another. In order for Caregivers to be able to manage these affairs, legal documents must be created and signed by the person in need of care while they are mentally capable of understanding the consequences of their actions. There are different types of documents that allow a caretaker to make different types of decisions.

1.  A Statutory Durable Power of Attorney is the primary document used to allow a Principal to choose an Agent to handle financial affairs. This can include all banking, real estate, stocks, personal property, business transactions, insurance, retirement plans, etc. Because it can give authority to handle the entire financial legacy of a Principal, this document is as important a document as a Will and should be understood and carefully considered.  There are many choices a Principal must make regarding how the Agent will be able to handle the Principal’s finances. Before signing this important document, seek the advice of an elder law attorney.
2.  A Medical Power of Attorney gives the Agent the authority to make medical decisions on behalf of a Principal who is incapable of communicating his or her wishes. The Medical Power of Attorney does not give an agent the authority to override the wishes of the Principal. The Agent’s duty is to communicate on behalf of the Principal and let the medical staff know what the Principal would have wanted had he or she been able to communicate.
3.  A Directive to Physicians and Family or Surrogates/Living Will allows a person the opportunity to declare his or her wishes regarding artificial life-sustaining treatment, or life support. This document allows the competent person to communicate whether he or she wishes his or her life to be prolonged by artificial means if he or she is declared terminal or incurable.
4.  An Out of Hospital Do Not Resuscitate Form instructs emergency medical responders and other health care professionals that the person does not wish to be resuscitated when out of the hospital. Instead the person states the wish to have a natural death with peace and dignity. This order does NOT affect the provision of other emergency care including comfort care.
5.  A Declaration of Mental Health Treatment allows a person to make advanced decisions regarding three different types of mental health treatment: psychoactive medication, convulsive therapy, and emergency mental health treatment. The instructions that you include in this declaration will be followed only if a court believes that you are incapacitated to make treatment decisions. Otherwise, you will be considered able to give or withhold consent for the treatments.

There is no document that allows an Agent to override the wishes of a Principal. If the Principal is a danger to himself or herself, and incapable of making financial or treatment decisions, a Caregiver would need to seek an order from the court for authority to override a Principal’s wishes.

Some helpful definitions:

• Principal: the person signing the document allowing another to act on his or her behalf
• Agent: the person named by the Principal to act on the Principal’s behalf

Resources

The Texas Chapter of the National Academy of Elder Law Attorneys, Inc. (NAELA) is a professional association of attorneys who are dedicated to assisting clients with public benefits, probate and estate planning, guardianship/conservatorship, and health and long-term care planning. Click here to find an NAELA member attorney to assist you with your elder law needs.

The Houston Bar Association provides programs that help eligible seniors, veterans, and disabled persons with legal problems, including wills and medical directives.  Services are provided by Houston Volunteer Lawyers. For more information, check out this recording of our Legal and Financial Webinar Series.