Everyone faces the possibility that sometime during their lifetime, they may become incapacitated. This can happen when an individual is nearing death, but it can also be the result of a temporary condition. Many people assume their spouses or children will automatically be allowed to make financial and/or medical decisions for them, but this is not necessarily so.
Powers of Attorney
A power of attorney is a legal document that allows one person (called the principal) to appoint someone else - called the agent or attorney-in-fact - to act on his or her behalf. The powers that can be exercised by the agent can be broad or narrow; the principal stipulates them, in advance.You might, for example, authorize your agent to do a specific thing (e.g., sell your house) or you might give the authority to do any legal act you would do yourself. If you become incapacitated and don't have a power of attorney, your family may have to go through lengthy and expensive legal action so that someone can act on your behalf. There are three different types of powers of attorney:
* A conventional power of attorney gives the agent whatever powers the principal chooses for a specific period of time (e.g.,30 days) beginning when it is signed.
* A durable power of attorney stays in effect for the principal's lifetime - beginning when it is signed. This power of attorney must contain specific languages stating the agent's power is to stay in effect even if the principal becomes incapacitated.
* A springing power of attorney is triggered by a specific event, such as when the principal becomes incapacitated. An attorney must carefully draft this type of power of attorney so that there is no difficulty determining when the springing or triggering event has occurred.
For estate planning purposes, a durable power of attorney is usually the recommended choice, since conventional powers of attorney expire, and it can be difficult to determine exactly when springing powersof attorney take effect. Good planning dictates that you have two powers of attorney - one for financial matters, and another to deal with medical issues; you can, if you choose, select the same agent to perform both duties.
Signing a power of attorney does not mean you can no longer manage your own affairs. You are not giving up your right to act in your own behalf; you are ensuring that your agent will be able to act when and how you have directed, if it becomes necessary. Also, it's important to note that you can revoke, or cancel, a power of attorney at anytime. You can destroy it or make a new one, and you do not need to give a reason for doing so. If you do make changes to your power of attorney it is a good idea to let all involved parties know of your decision - particularly your appointed agent and anyone they may be dealing with, as well as your attorney.
All powers of attorney automatically end when the principal dies. This means that after you die, your appointed agent will have no power to make decisions. Consequently, your agent's powers do not overlap with those of the executor of your estate.
Choosing a power of attorney agent is an important decision; you need to trust the person completely, and you need to make sure they are capable of performing the job. Make sure that the person you choose is willing to assume the responsibility. If you come up with a choice of more than one qualified individual, it might be a good idea to choose the one who lives nearest to you. Discuss your options with an estate planning attorney.
Planning Your Medical Care and Treatment - Advance Directives
Advance directives are written documents that tell your doctors what kind of treatment you'd like to have if you become unable to make medical decisions (e.g., if you're in a coma). They can take many forms, and the laws about them vary from state to state. It's a good idea to understand the laws of the state where you live when you write advance directives. It's also a good idea to make them before you are very ill. Federal law requires hospitals, nursing homes, and other institutions that receive Medicare or Medicaid funds to provide written information regarding advanced care directives to all patients upon admission.
Living wills are a kind of advance directive that come into effect when a person is terminally ill. A living will does not give you the opportunity to select someone to make decisions for you, but it allows you to specify the kind of treatment you want in specific situations. For example, you might choose to specify that you do not want to be treated with antibiotics if death is imminent. A Do Not Resuscitate order (DNR) is a type of advance directive specifying that if your heart stops or if you stop breathing you are not be given cardiopulmonary resuscitation (CPR). It is standard procedure in hospitals to try to help all patients who have stopped breathing or whose heart has stopped. You can, if you choose, tell your doctor you do not wish to be resuscitated and a DNR order will be entered on your medical chart.
A durable power of attorney for health care (sometimes called a durable medica lpower of attorney) specifies whom you've chosen to make medical decisions for you. It is activated anytime you're unconscious or unable to make medical decisions. You need to choose someone who meets the legal requirements in your state for acting as your agent. State laws vary, but most states disqualify anyone under the age of 18, your health care provider, or employees of your health care provider.
The person you name as your agent must:
* Be willing to speak and advocate on your behalf.
* Be willing to deal with conflict among friends and family members should it arise.
* Know you well and understand your wishes.
* Be willing to talk with you about these issues.
* Be someone you trust with your life.
Make sure to let family members and close friends know whom you've chosen as your agent. Your spiritual or religious beliefs may have bearing on the types of advance directives you choose to prepare. Although death is often a difficult subject to bring up, it is a good idea to discuss these issues with family members to ensure that they understand your values and beliefs. The more communication you have with family members, the easier it will be for them to respect your wishes. Also, if you've decided to be an organ donor, make sure that your agent and your family know and that you include the information in a medical directive.
Advance directives don't have to be complicated legal documents; they can be relatively short statements about what you want done if you can't speak for yourself. Any advance directive must, however, comply with state laws. It's also a good idea to have written advance directives reviewed by your doctor and your lawyer to make sure that your instructions are understood as intended. Once you've finalized advance directives, give copies to your family, medical power of attorney agent, and your doctor.
(SOURCE: Federal Citizens Information Center)