Can I appoint someone to make important legal decisions for me if I become unable to do so?
You can name a trusted friend or family member to act on your behalf if you become incapacitated.
Known as an “attorney-in-fact” or “agent,” the person you designate in your Power of Attorney may be given broad authority or limited power to act in certain situations. The person authorizing the other individual to act is called the “principal” or “grantor.”
The extent of the agent’s power is spelled out in the Power of Attorney. In addition, there are two main types of Powers of Attorney that specify when the agent’s authority is effective. A Springing Power of Attorney “springs” into action when you become incapacitated, and a Durable Power of Attorney becomes effective as soon as it is signed and continues until you die or revoke the document.
It is also a good idea to name an alternate agent who can step in if something happens to your first choice that prevents them from serving as your attorney-in-fact.
Can I appoint someone to make medical decisions for me if I cannot?
A Medical Power of Attorney is a legal document that names an individual as your healthcare agent to make medical decisions on your behalf. If you are incapacitated (e.g., in a coma or suffering from dementia) and unable to make decisions for yourself, the agent named in the Medical Power of Attorney has the authority to make decisions concerning your medical care and treatment.
A Medical Power of Attorney can either be a Durable Power of Attorney or Springing Power of Attorney depending on when it goes into effect. For Springing POAs, these may be automatically revoked when the grantor’s health improves.
How is the Medical Power of Attorney different from a Living Will?
A Living Will or Advance Directive informs healthcare providers of a person’s desires for end-of-life care. It does not name someone to make those decisions. Many people choose to have both a Living Will (or Advance Directive) that states their desires to guide their family and loved ones on end-of-life decisions, in addition to a Medical POA that names the person authorized to make decisions that are not expressly outlined in the Living Will.
What can the Medical Power of Attorney do?
If you become incapacitated and require a specific medical procedure, the designated agent named in your Medical Power of Attorney steps in and makes important decisions on your behalf.
This agent can make a number of key decisions, such as:
- Which healthcare providers and facilities to use.
- Which tests and treatments to administer.
- Whether or not to undergo surgery.
- How best to support your comfort and quality of life.
- Whether to disconnect life support or stop other life-sustaining treatments.
In addition, your designated attorney-in-fact may access your medical records and healthcare information, and may be able to make financial arrangements for your medical care.
How do I decide who to name as my Medical Power of Attorney?
This is an important decision that requires thought and consideration. Again, you can name a trusted friend or family member to act on your behalf if you become incapacitated. The person you designate in your Power of Attorney may be given broad authority, so it is crucial that you choose a person you trust to make decisions that are in your best interest.
Generally, a family member can be the best choice because they are likely to be familiar with your situation and wishes. A spouse or an adult child is a good choice for this role, provided that choice is unlikely to give rise to family drama and create added stress and problems. But a designated agent can be any adult of sound mind.
What happens if I do not have a Power of Attorney?
Failure to have a Power of Attorney can create significant problems for your family and loved ones. Without a POA in place, proceedings may get stressful and expensive for everyone involved.
The court is required to create a conservatorship or guardianship and appoint a person to take care of your medical and financial decisions for you. This person is called a conservator or guardian and may not be a close family member as the decision is made by a judge.
A court-ordered conservatorship is a legal relationship where a judge appoints a family member, friend, or another responsible person (conservator) to care for another adult (conservatee) who is unable to care for themselves or their finances. The conservator is responsible for making sure that the conservatee has food, clothing, shelter, and healthcare. This may include making important medical choices for them.
This type of court proceeding is started by a family member or friend who files a petition for conservatorship in the probate court in the county in which the person needing care resides.
There are two types of conservatorships: general conservatorship and limited conservatorship. A general conservatorship is frequently ordered in the case of the elderly who can no longer care for themselves. However, it may be ordered for younger people who have been seriously impaired in an accident or by illness. A limited conservatorship is more common for adults with developmental disabilities who are unable to fully care for themselves or their finances.
How can I set up a Power of Attorney?
After filling out the Power of Attorney document you select, you may want to have it reviewed by an estate planning lawyer. A lawyer can ensure that your POA complies with your state laws and covers what you want it to cover. For example, many states require that a Power of Attorney be signed in the presence of a notary public or one or more witnesses.
If you have more questions about setting up a Healthcare Power of Attorney, or other estate planning document, reach out to a Rocket Lawyer network attorney for affordable legal advice.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.