DURABLE POWER OF ATTORNEY, HEALTH CARE SURROGATES & LIVING WILLS

Generally, a durable power of attorney (“DPOA”) authorizes someone to handle your financial affairs.  If drafted correctly, the DPOA is effective even when you are incapacitated.  It only governs assets held in your individual name.  It doesn’t govern assets held in revocable trusts or other assets that you can hold as a fiduciary.  The DPOA is a great way to avoid guardianship if your assets are not in a revocable trust.   No matter if you have a will or a revocable trust, you should have a DPOA.

In a DPOA you can give your attorney-in-fact (the person to whom you give authority to act on your behalf) certain powers, such as making gifts on your behalf, creating or amending trusts, qualifying for public benefits, and a variety of other powers. A well drafted DPOA can provide your attorney-in-fact tremendous flexibility to manage your affairs if you are unable to do so.

A health care surrogate is the person appointed by you to make health care related decisions in case you are unable to.  A health care surrogate may also, when necessary, apply for public, government, or veterans’ benefits to defray the cost of your healthcare, consent to the withdrawal of life-prolonging procedures, and even make anatomical gifts.  Your health care surrogate may only make health care related decisions for you.  Your attorney-in-fact under your DPOA makes financial decisions, so it is important to have both documents in place so that all of your health-care and financial needs are addressed.

Making decisions about your health care is usually a personal matter.  But there can be times when your doctors, your family and your health care surrogate might be left wondering how you would want to handle end-of-life care.   If you are incapacitated and can’t make your wishes knows, a living will may provide that your life not be artificially prolonged under certain circumstances where there is no chance of you recovering.  It states under what circumstances you do, or do not, want life support. 

So, what happens if you don’t have a DPOA, a health care surrogate or a living will?  Enter the guardian.  It sounds all rosy that there is going to be someone looking out for you, but it’s expensive, slow and it brings the judicial system into personal matters of finance and health.   If you have these documents, you can avoid the time and expense of guardianship.   You’ll want the people in your family to have these critical instruments so that the people you choose are handling your affairs, and you and your family are not dealing with lawyers, judges and court-appointed guardians.