Power of Attorney

A power of attorney is an authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter.

Overview

Powers of Attorney for medical and financial decisions are integral to any estate plan. Many clients will have times when they are unable, due to health or other medical reasons, to take care of their financial affairs or make their own medical decisions. In order to qualify the agent to serve, the powers of attorney may require an opinion of a physician that the client is unable to make the decisions on their own. Physicians cannot render those opinions without a HIPAA release.

The Most Comprehensive Power of Attorney is a “Durable” Power of Attorney. What is it?

All estate planning should include a financial power of attorney naming a trusted friend or family member to act on your behalf so that someone can pay your bills and take care of your financial affairs if you are incapacitated or unable to manage your property. The individual to whom you assign this financial power is your “agent” or “attorney-in-fact,” and it should be someone you trust a great deal. The word “durable” means that your power of attorney remains valid even if you become incapacitated.

A durable power of attorney can save both time and money and prevent the necessity of a court appointed guardian. If you do not have any planning in place, the court may appoint a guardian, which could be someone you do not know or who has no personal interest in you. Another advantage to the durable power of attorney is its flexibility — you can revoke or change your durable power of attorney any time as long as you are competent. If you do not revoke it, your durable power of attorney ends at your death.

medical Power of Attorney and Directive to Physicians

A Medical Power of Attorney allows you to:

(1) appoint a person also known as an “agent” who can make health care decisions for you in the event you are incapable of doing so. Some of these decisions your medical agent can make on your behalf include non-emergency surgery, assisted living and rehabilitation elections. If you take the opportunity to name this person before the Court does it on your behalf, you can give your “agent” some important guidance on health decisions before you are incapable of doing so. While it may seem as though you are placing a significant responsibility on the person you chose as your “agent,” not having a health care directive can be much worse. Without your guidance, there may be dissention among your family members as to who is in charge and what treatment you would want.

HIPAA Authorization and Release

The inclusion of HIPAA language in the Powers of Attorney is a release of medical information. This medical release will allow the physician to release your medical information and make the medical determination that you are or are not able to make financial or medical decisions on your own behalf.

Why are these important?

The Directive to Physicians is also known as a Living Will and now the occasionally the “Terry Schiavo” document. We also refer to it as the “Pull-the-Plug” document because this is the document used to make your end-of-life decisions. Your Directive to Physicians is the document that allows you to decide what you would like to be done in the event that you have a terminal illness or an irreversible condition and the physician determines that nothing further can be done. Your directive guides your loved ones during these difficult times. Without your guidance and stated preferences in these situations, there may be dissension among your family members and you could be the next Terry Schiavo.

Declaration of Guardianship for Minor Children

This is one of the most important documents you can execute if you have minor children. This appointment allows you to decide who will raise your children in the event you and the biological parent are deceased. There have been cases where a child was placed in foster care when feuding family members could not agree to let the child live with one or the other family while the court made a decision in the “best interest” of the child. You can prevent this from happening to your children.

With proper planning you can designate who will have custody of your child and who will have control of any funds you leave behind for the care of your child. This could be the same person or you can separate the responsibilites of custody and financial responsibilities. As part of your estate plan, you can also set guidelines for your child’s guardian to respect while raising your child.

Frequently, choosing guardians is a stumbling block to coming to plan your estate. Often, spouses have different ideas about who will raise your child. We encourage you to make the step to come in and speak with our attorneys who can help guide you through the process and, more often than not, reach a decision that everyone is comfortable with. Any decision you make will avoid a court making the decision for you or worse — having your relatives argue in court over who gets your children. Without your decision and plan being in place, it’s impossible to predict who will end up with custody of your child.

Once you’ve made your choice, there are steps you can take to make sure the potential guardians you’ve chosen will have guidance and support they need.