Power of Attorney and Advance Health Care Directives

A financial power of attorney is a written document that gives another person power to make financial decisions for you and to manage your finances. This person is referred to as your “attorney-in-fact.”

The scope of the power you give this person can be as broad or as narrow as you want. A power of attorney can give someone the power to cash checks, make investments for you, or change the beneficiary on your insurance policies. It can give the person the power to sell your home. Or it can do only one or some of these things. In the financial power of attorney, you decide what power you want to give your attorney-in-fact.

Who Can Be My Attorney-in-Fact?

Any adult can be your attorney-in-fact. You decide. In making this decision, however, you should consider that your attorney-in-fact may have a good deal of authority. You must consider the possibility that person may abuse the authority you convey.

Although an attorney-in-fact is required to act in your best interests, once your attorney-in-fact has acted, and others have relied on the power of attorney to follow the instructions of your attorney-in-fact, it may be difficult or impossible to undo any damage. Also, if you become disabled, there may not be anyone around to ensure that your attorney-in-fact is really acting in your best interests.

Your attorney-in-fact should be someone that you trust, such as a family member or a life-long friend. You can even appoint more than one person to act as your attorney-in-fact. However, problems may arise if those people cannot agree on a decision.

You can designate alternative attorneys-in-fact to act for you if your first choice becomes unavailable. For example, you can make your spouse your attorney-in-fact, but provide that if your spouse becomes disabled or dies, your child will be attorney-in-fact. You can have as many alternates as you wish.

When the financial power of attorney becomes effective is up to you. You can make the power of attorney effective immediately or only if you become disabled.

In making this decision you may want to consider your own age and health. If your health is good, you might want to make the power of attorney effective only if you become disabled. On the other hand, if you currently have health problems, or may develop health problems soon, you may want to make the power of attorney effective immediately so that your attorney-in-fact can do things for you like cash your check or pay your bills.

You can cancel or change your power of attorney at any time. The best way to do this is to draft a new one and date it, and destroy the old one, including any copies. The new power of attorney should contain a statement that all prior powers of attorney are revoked.

You also should provide a copy of the new power of attorney to everyone with whom you do business. Otherwise, they may mistakenly honor the old one.

Usually you will name someone, called an “agent,” to make health care decisions for you if you cannot make them for yourself. This is generally a good idea because an advance directive cannot anticipate every health care issue that may arise.

If you have designated an agent whom you trust and who is intimately familiar with your wishes and preferences, that agent will be likely to make decisions consistent with your desires. So, although you can draft an advance directive that simply addresses treatment, most people do appoint an agent.

Your agent is typically given the power to make very serious decisions, even life and death decisions. Consequently, your agent should be someone you trust. If there is no one you feel you can trust to make such important decisions, however, you can still prepare an advance health care directive.

Although you can appoint more than one agent, you should be cautious about making such a decision. Problems can arise if your joint agents cannot agree. You can and should appoint alternate agents who will serve if your first choice is unable to serve.

You can revoke or modify your advance health care directive at any time. The best way to modify an advance health care directive is to destroy the original and any copies, then draft a new one, sign it and date it. The new advance health care directive should provide that all prior advance health care directives are revoked.

If you only want to revoke an advance health care and not create a new one, the best way to do it is to destroy the original and all copies.

You should not draft either an advance health care directive or a power of attorney on your own. The law requires you to comply with very technical drafting and witnessing requirements.

Attorneys generally charge reasonable rates to draft these documents for you. In addition, if you are a senior citizen, there are organizations like Community Legal Aid Society that may draft the documents for you at no charge.

There are form advance health care directives available from various organizations such as hospitals. However, to be certain the form document reflects your wishes, you should consult an attorney.