Having a Health Care Power of Attorney and a Durable Power of Attorney in place is one of the best ideas of estate planning. Why? Taking a pro-active approach to both of these documents means that when the unexpected occurs (and that is exactly how things occur—unexpectedly) the person or persons you have named for these important roles will be able to step in quickly and made decisions. Having a durable power of attorney and a health care power of attorney are much better than the alternative: a conservatorship and a guardianship.
When a person is unable to make decisions for him or herself, time is often of the essence. A conservatorship and a guardianship take time to get. You have to petition a probate court. A Health Care Power of Attorney and a Durable Power of Attorney can be put into effect as soon as you lose the capacity to make decisions for yourself.
According to the article “Medical guardianship versus power of attorney” from The News Enterprise, a health care power of attorney is a document that grants another person the power to make medical decisions for you, when you no longer have the ability to make those decisions for yourself. It is known by a few other names, depending on the state where you live: health care proxy, a medical power of attorney or a health care surrogate.
It needs to have HIPAA-compliant language, which will allow the person you name the ability to review medical information and discuss protected health information with your health care providers.
A health care power of attorney may also include language for an advance medical directive, which gives instructions for end-of-life decisions. This is often called a “living will.” It is your legal right to reject medical treatment and to make, in advance, decisions about feeding tubes and the number of doctors required to determine the probability of recovery and pain management.
A health care power of attorney does not generally empower another person to make decisions until you are unable to do so. Unlike a general durable power of attorney, which permits another person to make financial or business decisions with you while you are living, a health care power of attorney does not take effect until you are no longer able to understand your medical situation.
A guardianship is completely different from these documents. A guardian may only be appointed, if a judge or jury finds you wholly or partially disabled in such a way that you cannot manage your own finances or your health. The appointment of a guardian is a big deal. Once someone has been appointed your guardian, you do not have any legal right to make decisions for yourself. A court will also appoint a legal fiduciary, who will make your financial decisions.
There are record-keeping requirements with a guardianship that do not exist for a power of attorney. The court-appointed representative is responsible for reporting to the court any actions that they have taken on your behalf.
To have power of attorney documents executed, the person must be capable of understanding what they are signing. This means that someone receiving a diagnosis of dementia needs to have these documents prepared, as soon as they learn that their capacity will diminish in the near future.
If the documents are not prepared and executed in a timely fashion, a guardianship proceeding may be the only option. Planning in advance is the best way to ensure that the people you trust are the ones making decisions for you. Speak with an experienced estate planning attorney now to have these documents in place.
Reference: The News-Enterprise (Oct. 13, 2019) “Medical guardianship versus power of attorney”