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Power Of Attorney

Advance Directives

An important part of estate planning is preparation for possible incapacity. A common and effective way of achieving this preparation is through the use of advance directives: powers of attorney for property, medical powers of attorney, directives to physicians, advance directives for mental health matters, and designations of guardian.

Power of Attorney for Property – Not Just a Form

A power of attorney is a grant of authority by a principal to a person whom the principal appoints as his attorney-in-fact (or “agent.”) By the power of attorney, the principal confers upon the attorney-in-fact the authority to perform certain specified acts, or a broad range of acts, on behalf of the principal.

A durable power of attorney is a written power of attorney which contains words expressing the principal’s intent that the authority conferred on the attorney-in-fact will continue and not be affected by the principal’s subsequent incapacity.

Typically, durable powers of attorney are effective immediately upon execution. Sometimes, however, a principal is reluctant to delegate broad powers to anyone while he or she is still competent. He may want to execute a springing power of attorney, which becomes effective upon the disability of the principal and not before. Springing powers of attorney can cause problems because of the need to prove the disability of the principal. No one wants to admit that they have declined to the point of being unable to take care of their medical and financial decisions. Typically, the attorney in fact is a spouse, child or trusted friend who does not want to be the “bad guy” in taking away a principal’s dignity by obtaining the necessary documentation that the principal is now incapacitated.

Medical Power of Attorney

A medical power of attorney for health care authorizes a trusted person (or persons) to make health care decisions in the event you are unable to make them. Typically, you empower your family to help you and to be in charge of medical decisions when you are unable to represent yourself.

Living Will

Also known as an advance directive, it clearly expresses to the doctors and others a person’s wishes regarding the use of life-sustaining medical procedures when death is imminent. It is NOT a substitute for a durable Medical Power of Attorney.

Declaration of Guardian in the Event of Incapacity

This instrument designates the person(s) you would like to have appointed as your guardian if guardianship is unavoidable. It can also be used to prevent the appointment of certain persons you do not wish to have serve as guardian. Usually, a set of properly prepared durable power of attorney documents avoids the necessity for a guardianship proceeding. The documents also assure that your family is in control, not a judge or other stranger.

HIPAA – Medical Privacy

Medical privacy regulations under HIPAA may prevent hospitals, nurses doctors, insurance companies, etc. from disclosing medical information to relatives and friends. Documents should waive this privacy restriction for those you want told about your medical situation.

Powers of attorney are not “just forms.” They are powerful documents which should be customized to meet each person’s estate plan goals and family situation. You should consult with a knowledgeable attorney about these matters.