While many people have wills, the majority of us fail to plan for the potential of our incapacity. Preparing for such an occurrence can significantly reduce the stress you and your family may experience later.
Power of Attorney
A power of attorney is a document whereby one person (the principal) gives another (the agent) the power to act on his or her behalf. Generally, the powers granted deal with property and finances, such as the ability to sell a home, purchase a car, write checks, file taxes, etc. But a power of attorney can also grant power to perform actions such as initiating or defending a lawsuit, accessing a safe deposit box, or changing a life insurance beneficiary. These powers can be granted very broadly through a general power of attorney or for a specific task through a limited power of attorney. A power of attorney can become effective immediately or only upon the principal’s incapacity.
A durable power of attorney is one that contains a statement that it is the intent that the authority conferred shall be unaffected by the principal’s subsequent incapacity or mental incompetence. In the event the principal becomes incapacitated or mentally incompetent, the power of attorney document must be registered in the office of the register of deeds of the county designated in the power of attorney (if none has been designated, then the county in which the principal has legal residence). Such registration can take place subsequent to the incapacity or mental incompetence.
A power of attorney ceases to be effective upon death.
Healthcare Power of Attorney
A health care power of attorney gives the person named the power to make health care decisions for the principal if the principal cannot make the decision due to medical incapacity. A health care power of attorney must be executed in the presence of two witnesses who believe the principal to be of sound mind and who (i) are not related to the principal or principal’s spouse, (ii) are not entitled to any portion of the principal’s estate, (iii) are not the principal’s physician or mental health treatment provider or an employee of the attending physician or mental health treatment provider or the facility/nursing home in which the principal is a patient, and (iv) do not have a claim against the estate of the principal.
Several copies of the healthcare power of attorney can be executed so that the agent has a copy as well as physicians and healthcare providers.
A living will is a declaration of wishes regarding end-of-life situations directed to the hospital and doctors, recognizing an individual’s right to a peaceful and natural death. Also known as an Advance Directive For a Natural Death , a living will expresses the circumstances under which the person’s life would not be prolonged by life-prolonging measures. Life-prolonging measures are medical procedures or interventions which only serve to artificially postpone the moment of death by sustaining, restoring, or supplanting a vital function, including mechanical ventilation, dialysis, antibiotics, artificial nutrition and hydration, and similar forms of treatment. A living will must be executed in the presence of two witnesses who (i) are not related to the declarant or declarant’s spouse, (ii) are not entitled to the estate of the declarant upon the declarant’s death, (iii) are not the attending physician, licensed health care providers or employees of the attending physician, health facility/nursing home in which the declarant is a patient, and (iv) do not have a claim against the estate of the declarant.
You should talk to your doctor about life-prolonging measures, what happens if life-prolonging measures are stopped, and your choices.
Contact our firm today if you have questions about powers of attorney, healthcare powers of attorney, and living wills.