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. |
