Having a Health Care Power of Attorney in place before it is needed, is one of the best ideas of estate planning, along with having a financial Power of Attorney in place before it is needed. Why? This is because 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 make decisions for you.
Time is often of the essence, when these documents are needed.
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,” and is your legal right to reject medical treatment, 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 financial durable power of attorney, which permits another person to make financial or business decisions with you while you yet have capacity, as long as you are able to understand your medical situation, you are still in charge of your medical decisions.
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 may 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 of their diagnosis as the disease process is progressive and their capacity will diminish over time.
If the documents are not prepared and executed in a timely fashion, a guardianship proceeding may be the only legal option available that will allow someone to step in and make decisions. 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 before the worst or unexpected happens.
Reference: The News-Enterprise (Oct. 13, 2019) “Medical guardianship versus power of attorney”