Powers of Attorney and Health Care Directives

By: Michael P. Panebianco | October 20, 2020

When people think of “estate planning” they often think that it means deciding what happens to their assets when they die.  However, equally important (and perhaps, more so), is the need to plan in the event of incapacity.

Incapacity doesn’t necessarily mean “permanent” incapacity due to one or more medial conditions often associated with advanced age.  It also means “temporary” incapacity due to an illness or accident.  If that happens, who will make health care decisions on your behalf?  Or pay your bills and otherwise handle your financial affairs?

Well, if you do nothing, then someone, a spouse, parent, child, or other person, may need to go to court to become appointed your guardian or conservator to have authority to make health care decisions and handle your financial affairs on your behalf.  This can be a time consuming and costly process.  In order to avoid the potential need to have a guardian or conservator appointed, you can sign a durable power of attorney and a health care proxy (which may be called an Advance Health Care Directive, Designation of Health Care Surrogate, or something else, depending on where you live).

A durable power of attorney allows you to appoint an agent to handle your financial affairs on your behalf.  It is called “durable” because your agent will have these powers even if you become incapacitated.  The powers you give to your agent can be as broad or as narrow as you would like them to be.

A health care proxy allows you to appoint an agent to make health care decisions on your behalf in the event you lack capacity, as determined by your attending physician (not your spouse or child).  Often, this document will include guidance and directives for your agent as to your wishes concerning treatment, particularly, end of life treatment.

By signing these documents, you get to decide who will be your agent.  If you don’t, someone you don’t want to make decisions for you may end up doing so.

For parents with minor children who will soon turn 18, it is important to remember that once your child turns 18, you may not have authority to make health care decisions for your child or have access to their medical records if something happens to them.  Unless, of course, your child signed a health care proxy after turning 18 naming you as their agent.  Not having one can be particularly problematic if your child goes to college out of state and they get sick or are injured, because the state they are in may not recognize you as having authority without it and you may need to be appointed guardian for your child in that state.

With this being National Estate Planning Week, take the time to think about your situation and whether you, or someone you know, need to sign, or update, a durable power of attorney and health care proxy.  Your family will be glad you did.