There’s nothing glamorous about a Power of Attorney. It’s frequently one of the last documents people think of when doing estate planning. That’s a mistake.
For seniors, a general Power of Attorney is the single most important legal document a person can have. For that reason, we recommend drafting or reviewing a Power of Attorney for every client we see. A Power of Attorney authorizes a person to act as your “agent.”
A well-drafted Power of Attorney helps prevent the nightmare of guardianship — the time-consuming, expensive and embarrassingly public process of going to court to declare a person incompetent and then appointing one or more persons to act as guardian, a process that is then subject to ongoing court supervision.
It also allows you to communicate in writing how you want certain decisions made later, when you could be unable to make the decision. In a very real sense, the Power of Attorney allows you to make future decisions now, knowing that your agent is legally bound to carry them out on your behalf.
“The Power of Attorney is the only mechanism that gives you control over your own money and your own care if you are unable to make your own decisions.”
Many people have the mistaken belief that a Power of Attorney is somehow an add-on “form” that attorneys like to say is important and charge a little extra for when they’re doing other planning work. People also tend to think that Power of Attorney documents are “boilerplate” and all the same. Nothing is further from the truth.
The lack of a Power of Attorney can directly impact the quality of care you receive during a temporary or permanent incapacity, and it should be customized for every individual based on their desires. Not having a Power of Attorney means that whoever the court appoints as your guardian will be making the decisions for you, without your input.
Financial Power of Attorney
A Financial Power of Attorney authorizes your agent to carry on your legal and financial affairs. Without it, your spouse or child may have difficulty doing routine things like depositing checks into your bank account, paying your bills, or even things like changing a cell phone plan or switching utilities. Unfortunately, the increase of identity theft and fraud only makes it all the more important to have a Power of Attorney for your agent to provide as proof of their authority.
From the perspective of an attorney who primarily works to promote the care and well-being of seniors, perhaps the most important provisions in a Financial Power of Attorney are “asset protection” powers. This includes giving your agent powers such as gifting, and establishing, funding and terminating trusts, both revocable and irrevocable. These powers can be essential to permit the agent to implement important asset protection strategies in the event you need long-term care in a nursing home or assisted living facility and you want to avoid going broke paying for care.
Most Power of Attorney “forms” available on the internet, or prepared as part of basic estate planning by an estate planning or general practice attorney do NOT contain the necessary asset protection powers. Typically, these powers are only included if the Power of Attorney is prepared by an experienced Elder Law attorney.
Medical Power of Attorney
Similar to the Financial Power of Attorney, a Health Care Power of Attorney (or Medical Power of Attorney) authorizes another person to be your “agent” for medical care decisions. It becomes effective only when your physician has determined you are unable to make your own decisions. In putting someone else in charge of your medical decisions, it is always a good idea to have conversations with your agent about what your desires are, should the agent end up in a position of making decisions for you.
The Health Care Power of Attorney allows you to communicate your desires to family members and medical professionals about how you want to be cared for. It also authorizes your agent to communicate with your doctors, make decisions on your behalf, and obtain medical records, usually by including a HIPAA release as part of the Power of Attorney.
Advance Directive for Health Care
Sometimes called a “Living Will,” this document expresses to doctors and other medical personnel what your desires are regarding life-sustaining medical procedures such as artificial feeding and various forms of “life support.” The Advance Directive is best discussed with your primary care physician, who can offer context to the decisions and help you understand how choices in the Advance Directive might actually play out when receiving care.
As seniors age, the Advance Directive should be reviewed and updated regularly based on changes in your health. The Advance Directive is NOT a substitute for a Medical Power of Attorney.
These Decisions Affect Your Quality of Life
Having Powers of Attorney and an Advance Directive for Health Care are necessary documents that directly impact your quality of life as you age. Many hospitals and care facilities will offer to provide you with forms you can fill out, or an estate planning attorney may have provided these documents to you as part of general estate planning.
However, when it comes to elder care, the importance of having and regularly reviewing these documents cannot be overstated. If changes need to be made, any of these documents can be amended or revoked. We would be honored to assist with creating or reviewing your Powers of Attorney or Advance Directive. Please contact us or call (405) 435-9700.