What is a Healthcare/Medical Power of Attorney?
An individual (the “principal”) can grant power to another person (“the agent”) through a legal document to make decisions about the principal’s health care and medical treatment. Because “health care” means any treatment, service, or procedure to maintain, diagnose or treat your physical or mental condition, your agent has the power to make a broad range of health care decisions for you. Your agent may consent, refuse to consent, or withdraw consent to medical treatment and may make decisions about withdrawing or withholding life-sustaining treatment. Your agent may not consent to voluntary inpatient mental health services, convulsive treatment, psychosurgery, or abortion. A physician must comply with your agent’s instructions or allow you to be transferred to another physician.
Your agent’s authority begins when your doctor certifies that you lack the capacity to make health care decisions. Even after you have signed a medical power of attorney, you have the right to make health care decisions for yourself as long as you are able to do so, and treatment cannot be given to you or stopped over your objection.
Your agent is not liable for health care decisions made in good faith on your behalf.
The person you appoint as your agent should be someone you know and trust. This person must be 18 years of age or older or a person under 18 years of age who has had the disabilities of minority removed. If you appoint your health or residential care provider (your physician or an employee of a home health agency, hospital, nursing home, or residential care home, other than a relative), that person has to choose between acting as your agent or as your health or residential care provider; the law does not permit a person to do both at the same time. You should inform the person you appoint that you want the person to be your health care agent and discuss your medical power of attorney with your agent and your physician and give each a signed copy. Unless you state otherwise, your appointment of a spouse dissolves on divorce. You may wish to designate an alternate agent in the event your agent is unwilling, unable, or ineligible to act as your agent.
You have the right to revoke the authority granted to your agent by informing your agent or your health or residential care provider orally or in writing, or by your execution of a subsequent medical power of attorney.
A medical power of attorney may not be changed or modified. If you want to make changes to your medical power of attorney, you must make an entirely new one.
What is a Financial Power of Attorney?
An individual (the “principal”) can grant power to another person (“the agent”) to make decisions about the principal’s property and finances. It can be a general, broad power to address all property and financial issues, or it can be limited to the following specific areas:
- Real property transactions
- Tangible personal property transactions
- Stock and bond transactions
- Commodity and option transactions
- Banking and other financial institution transactions
- Business operating transactions
- Insurance and annuity transactions
- Estate, trust, and other beneficiary transactions
- Claims and litigation
- Personal and family maintenance
- Benefits from social security, Medicare, Medicaid, or other governmental programs or civil or military service
- Retirement plan transactions
- Tax matters
The person you appoint as your agent should be someone you know and trust. This person must be 18 years of age or older or a person under 18 years of age who has had the disabilities of minority removed.
At the time of executing your financial power of attorney, you have the choice to decide whether you want your agent’s authority to begin immediately, or whether it begins upon your disability, as certified in writing by a licensed physician.
As with the medical power of attorney, you have the right to revoke the authority granted to your agent, but you must do so in writing and you must also notify the agent of the revocation.
Like the medical power of attorney, a financial power of attorney may not be changed or modified. If you want to make changes to your financial power of attorney, you must make an entirely new one.
When people consider creating a power of attorney, they often also consider these other legal documents:
Directive to Physicians and Family or Surrogates (“Living Will”)
A directive to physicians is an important legal document designed to help you communicate your wishes about medical treatment in the event of a terminal illness, irreversible medical condition or imminent death, if you are at that time unable to make your wishes known because of the illness or injury. The decisions contemplated involve whether you wish to only be made comfortable, or whether you wish to receive all available life support options. These wishes are usually based on personal values, and can be made now, instead of leaving the choice to be made by your loved ones at that difficult time. Your wishes will be taken into consideration by your physicians and loved ones to reach a medical decision that would best honor your wishes.
A directive to physicians is different from a “Do Not Resuscitate” Order.
Declaration of Appointment of Guardian (for yourself or for your minor children) in the Event of Death or Incapacity
A declaration of appointment of guardian is an important legal document that allows you to state your wish of who should serve as the guardian of the person and/or as the guardian of the estate of either yourself, or of your minor children. It also allows you to specifically identify individuals who should not serve as such. A declaration for yourself would be used if you ever needed a guardian in the future due to your incapacity. A declaration for your minor children would be used if your minor children ever needed a guardian due to your death or incapacity. The Court would look to your declaration to consider your wishes and determine who would best serve.
The information furnished is only general and not a substitute for personalized legal advice.