Powers of Attorney Assist During Illness

By DeLila Bergan, Attorney at Law

When thinking of estate planning, wills are often the focus of concern.

While it is important to have a thorough will, legally executed, and updated periodically, a will is not in effect until after an individual’s death.

How do we plan for assistance prior to death, such as a lengthy or debilitating illness?

Powers of attorney are a good planning tool to create a way for a trusted loved one or friend to assist during a period of incapacity or, in the management of finances, whenever an individual might find it convenient to delegate financial responsibilities.

While terms and formats differ somewhat from one state to another, there are typically two types of powers of attorney, one for the management of finances, and one for the management of health care.

A health care power of attorney becomes active only when an individual is so ill that he or she cannot make or communicate a health care decision to his or her physicians.

For example, if Mr. Jones is in a coma, or if he develops a dementia, which impairs his understanding and judgment, the agent nominated by Mr. Jones in his health care power of attorney has the authority to make health care decisions for Mr. Jones. Do not assume that family members automatically have the right to make these types of decisions. Most state law is quite vague on who is permitted to make medical decisions for another; a valid power of attorney clarifies the decision-maker for physicians.

Further, a health care power of attorney may state an individual’s instructions regarding life support issues (cardiopulmonary resuscitation, mechanical ventilators or respirators and tube or intravenous feedings and hydration) if he or she becomes terminally ill.

It may also discuss the scope of an agent’s power (can the agent decide if the incapacitated individual should be hospitalized or admitted to a care facility?).

Other considerations to be discussed may include:

• Whether hospice care is desired in the case of a lingering terminal illness;
  
  
• Whether the individual wishes to be an organ or tissue donor;
  
  
• Whether the agent has access to the medical record;
  
  
• Whether the agent can authorize intrusive mental health treatment (such as medication by injection or electroconvulsive therapy), and;
  
  
• Who the individual would choose as a guardian or conservator, should one ever be necessary.

The power of attorney can include special instructions on the individual’s medical condition and treatments being considered.

For women of child-bearing age, it may also include a statement as to whether instructions on life support issues should be altered if the individual is pregnant at the time of incapacity.

More than one agent can be named, typically giving an order in which the agents are to be contacted.

For example, Mr. Jones might make his son who lives in town his primary health care agent, but could name his out-of-state daughter as a second agent should physicians be unable to locate the son in an emergency.

A financial power of attorney allows an individual to nominate one or more trusted individuals who can manage legal or financial matters.

The powers are typically active once the power of attorney is executed, so the individual and agent both have access to the individual’s finances. They share authority to manage the finances, but they do not share ownership of the assets.

This may be safer than placing property or financial accounts in joint tenancy simply for the convenience of allowing a family member to write a check; joint tenancy shares the ownership of the asset and thus increases risk to the asset (there may also be tax consequences).

Some states allow the creation of financial powers of attorney contingent upon the incapacity of the individual - the agent has no power unless the individual’s physician finds the individual incapacitated and unable to manage his or her finances.

Financial powers of attorney may use simple state-approved “short forms” or may state in lengthy test the exact powers being granted; both types have their purposes.

To learn more about powers of attorney, contact an elder law attorney in your area to discuss your needs and concerns.

 Right at Home is a national organization dedicated to improving the quality of life for those we serve. We fulfill that mission through a dedicated network of locally owned providers of in-home care and assistance services.