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Power of Attorney: Cans and Can’ts

Posted by Charlie Weisinger | Legal

Powers of attorney are key estate planning documents. In the unfortunate event that you become unable to care for yourself, it is crucial that you grant a trusted party the authority to effectively make legal, financial, and medical decisions on your behalf. Through two key estate planning documents — the durable power of attorney and the medical power of attorney — you can protect yourself. 

There is a considerable amount of confusion regarding exactly what an agent who has powers of attorney can and cannot do. While power of attorney does bestow substantial legal and financial authority, there are also a number of different limitations. Here, our San Antonio, TX estate planning attorneys provide an overview of the ‘cans’ and ‘can’ts’ of powers of attorney in Texas. 

Power of Attorney: 21 Cans

  1. Can a Convicted Felon Have Power of Attorney? Yes. Texas law does not prevent a convicted felon from having a power of attorney. A mentally competent person has the authority to select who they want to serve as their power of attorney.
  2. Can a Company Be a Power of Attorney? Yes. In Texas, you can grant your power of attorney to an entity of your choosing. In certain circumstances, you may choose to give your power of attorney to a company or organization instead of an individual. 
  3. Can a Doctor Override Power of Attorney? Yes — but only in limited circumstances. If an advance medical directive is in place, the instructions in that document may override the decision of a power of attorney. Additionally, doctors may also refuse to honor a power of attorney’s decision if they believe that the agent is not acting in the best interest of the patient. This is a complicated situation that can create litigation. 
  4. Can a Durable Power of Attorney Be Changed? Yes. A durable power of attorney is a flexible legal document. As long as a person is mentally competent, they can change — even revoke — power of attorney. 
  5. Can a Girlfriend Be a Power of Attorney? Yes. Any trusted person can serve as a power of attorney. They do not have to be a legal relative. 
  6. Can a Power of Attorney Also Be a Beneficiary? Yes. In many cases, the person with power of attorney is also a beneficiary. As an example, you may give your power of attorney to your spouse. 
  7. Can a Power of Attorney Be Challenged? Yes. If you believe that a power of attorney was not properly granted or the person with power of attorney is not acting in the best interests of the principal, you can take legal action. 
  8. Can a Power of Attorney Create an Irrevocable Trust? Yes — but only with the express authorization of the principal. To be able to create an irrevocable trust, the power of attorney documents must state that the specific right to do so has been granted to the agent.  
  9. Can a Power of Attorney Holder Open an Account? Yes — but certain requirements must be met. Banks and financial institutions will require the agent to present specific documents.  
  10. Can a Power of Attorney Pay Themselves? Yes — but they need authorization in the power of attorney documents. In the power of attorney documents, you have the right to pay your power of attorney an hourly rate — or general compensation — for their service. If the power of attorney documents do not allow for such payment, then the agent should not pay themselves. 
  11. Can a Trustee Appoint a Power of Attorney? Yes. A trustee may have the ability to appoint a power of attorney. This can be complicated and should be done with the guidance of an attorney. 
  12. Can I Draft My Own Power of Attorney? Yes — but it is not recommended. Power of attorney documents should be drafted and reviewed by an experienced legal professional. 
  13. Can Two People Have Power of Attorney? Yes. You have the legal right to appoint multiple people as your power of attorney. You could even split your durable power of attorney and your medical power of attorney. The legal documents should state whether each agent has full, independent power or if they have to act jointly.  
  14. Can My Wife Be My Power of Attorney? Yes. Family members, including spouses, can be your power of attorney in Texas. 
  15. Can a Power of Attorney Change a Life Insurance Beneficiary? Yes — but the agent always has a fiduciary duty to act in good faith. If your power of attorney is making such a change, it must be in your best interests. If they do not act in your interests, they are violating their duties. 
  16. Can Power of Attorney Keep Family Away? Yes — at least in certain circumstances. With medical power of attorney, an agent can make health-related decisions for the principal. This could include keeping family members away.  
  17. Can Two Siblings Have Power of Attorney? Yes. Two or more parties can have your power of attorney. You should make sure that the power of attorney documents are well-drafted. 
  18. Can You Cash a Check With a Power of Attorney? Yes. A power of attorney has the authority to make financial transactions on your behalf, including cashing checks. 
  19. Can You Change Your Power of Attorney? Yes. A power of attorney is a legal tool. A mentally competent person can alter their power of attorney — including revoking it — whenever they choose to do so.  
  20. Can You Refuse Power of Attorney? Yes. No one is obligated to accept another person’s power of attorney. You can refuse it for any reason.  

Power of Attorney: 12 Can’ts

  1. Can a Durable Power of Attorney Make Medical Decisions? No. A durable power of attorney is generally for legal decision making and financial decision making. To allow a trusted person to make health care decisions, grant them medical power of attorney.
  2. Can a Durable Power of Attorney Override a Living Will? No. Your living will is a core estate planning document. A valid living will takes precedence over the decisions of a person with power of attorney.
  3. Can a Durable Power of Attorney Change a Will? No. If you give a person your power of attorney, they do not have the right to change your will.
  4. Can a Person With Dementia Change Their Power of Attorney? No. In order to change your power of attorney in Texas, you must be mentally competent. A person with dementia will be prevented from altering their power of attorney. 
  5. Can a Power of Attorney Borrow Money? No. The agent must act in the best interests of the principal. Unless the power of attorney documents specifically state that borrowing money is acceptable, it should not be done.  
  6. Can a Power of Attorney Open a Joint Bank Account? No — not without express authorization to do so. A person with power of attorney does not need to add their own name to the bank account. They already have the legal authority to withdraw money from your account to take care of your needs.  
  7. Can a Power of Attorney Sign a Will? No. Power of attorney does not give a person power to create or sign a will on behalf of another party. 
  8. Can a Power of Attorney Transfer Money to Themselves? No — not without good reason and express authorization. While power of attorney documents can allow for such transfers, generally speaking, a person with power of attorney is restricted from giving money to themselves. 
  9. Can a Relative Witness a Power of Attorney? No — at least that is not sufficient. Power of attorney should be witnessed by a notary public. 
  10. Can a Lasting Power of Attorney Refuse Treatment? No — not without specific authorization to do so. If you want to refuse certain treatment, that should be done in the form of an advance medical directive. Doctors are unlikely to stop treatment because of what a power of attorney says.  
  11. Can Power of Attorney Write Checks After Death? No. From the moment a person passes away, the power of attorney is extinguished. After death, the agent has no more legal authority over the principal’s affairs.  
  12. Can You Get Power of Attorney Without Consent? No. You must get consent to obtain a person’s power of attorney. Indeed, people who cannot consent, such as those with dementia, can no longer give their power of attorney to another party. 

Speak to Our San Antonio, TX Estate Planning Lawyers Today

At Weisinger Law Firm, PLLC, our Texas estate planning attorneys have deep experience handling the full range of issues related to power of attorney. We provide compassionate, fully personalized legal guidance to our clients. For a review of your case, contact our law firm today (210) 201-2635.

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