This article is not intended as legal advice, but rather as an overview of something most of us neglect. That is, designating someone to have your legal power of attorney if you should become incapacitated.
What if you get in an accident or become so ill that you are unconscious and unable to be consulted for decisions regarding your health and finances? Have you ever thought about it? I know that I have. Do you know how to make sure your wishes are honored?
If you want to have any say about what happens to you if you become incapacitated (and I assume that most of us do want to have a say), you will need a power of attorney. In general, a power of attorney is a document, signed by a competent adult designating a person that they (the competent adult) trusts to make decisions on their behalf should they (the competent adult) be unable to make such decisions.
You may think that you’ve already got this problem handled if you’ve told someone to manage your affairs if anything should happen to you. However, most institutions (such as hospitals, banks, and the Internal Revenue Service) require a power of attorney to be in writing before they will honor it. Even if they do honor the oral power of attorney, the odds are great that your wishes will be forgotten or remembered incorrectly.
A power of attorney document can become very important if you (or someone you love) develop a debilitating condition such as Alzheimer’s disease, stroke, or other types of dementia. This document could also be needed if you experience a serious accident. However, if these events have already occurred it’s too late to draw up a power of attorney.
There are several types of power of attorney. Today I will discuss a Medical Power of Attorney and a Durable Power of Attorney.
The best way to get adequate power of attorney documents is to consult with an attorney who can alert you to specific details necessary in your state. For this reason, my family consulted with an attorney and I recommend that your family also consult with one. The purpose of this article is not to replace an attorney, but rather to familiarize you with the terms so that when you do go to see an attorney you can ask intelligent questions.
A Medical Power of Attorney allows you to designate someone to make decisions for you regarding your health care if you should become incompetent or critically ill. Usually, you will want to pick someone who is a family member, although a friend may also be selected. You should be aware that without a medical power of attorney your family members (not your spouse, though) might be restricted from accessing your medical records under HIPAA, the Health Insurance Portability and Accountability Act.
A Durable Power of Attorney allows you to designate someone as an agent to make financial and other decisions for you. You can specify whether you wish the power to begin immediately, or if it should begin when you become incapacitated (which is probably what most of us want). If you choose the latter, then a doctor will need to certify your incapacity before your agent can make decisions for you. Again, you will likely want to pick someone who is a family member, although a friend may be chosen.
What if you change your mind after you’ve drawn up your power of attorney? Are you stuck? In most cases, the answer is no. Unless the power of attorney is irrevocable, the person who created it may revoke it (providing that they are competent) by informing the attorney who created it.
Consider taking the necessary steps to create your power of attorney document today.