A durable power of attorney allows your wishes with regard to your financial affairs to be carried out should you become disabled or incapacitated. It can avoid the prospect of a conservatorship or guardianship proceeding—and the expense, emotional strain on your family and frustration that goes with conservatorship/guardianship proceedings. In most situations, two types of durable powers of attorney are used. The person you appoint to make financial decisions for you in your durable power of attorney is known as the Attorney in Fact. By appointing a power of attorney, you ensure that your wishes will be carried out by someone you trust, such as a spouse, close friend or advisor.
2. Are there restrictions on who can create a durable power of attorney? Can I choose anyone I want to be my Attorney in Fact?
In almost all circumstances, any legally competent adult can create a power of attorney, as long as he or she is a resident of the state in which it is created. Likewise, any legally competent adult can serve as Attorney in Fact in most situations. Of course, choosing your Attorney in Fact is an important decision and should not be taken lightly. It is also important to have your durable power of attorney drafted by an attorney experienced in this area of the law.
A Durable Power of Attorney for Health Care allows you to designate the person you want to make decisions about your medical care on your behalf should you become incapacitated. It lets you give specific instructions to your agent that he or she must carry out, and gives them the authority to ensure health care providers are following your instructions. This means physicians, hospitals and other medical professionals must carry out your agent’s instructions as if they were your own.
If you become permanently unconscious, terminally ill or unable to communicate your wishes for medical treatment, a Living Will outlines your desires in advance about the level of care taken on your behalf. Most states have laws to protect a patient’s right to refuse medical treatment. A Living Will, together with other estate planning tools and strategies, can protect your loved ones from having to make critical decisions about your medical treatment in an end of life scenario, as well as protect your estate from the high costs associated with carrying out such treatment.
A HIPPA Authorization Form allows your medical information to be released to people you choose, such as family members, agents and successor trustees. It is designed to circumvent provisions in the Health Insurance Portability and Accountability Act (HIPPA), which prohibited the release of such information and led to some physicians, hospitals and care providers refusing to provide medical information to patients’ adult children and even spouses.
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