What happens if you are out of town and some kind of business has to be transacted? Who makes medical decisions when someone is in an accident and needs surgery?
There are many situations where it is necessary to make medical, personal, and financial decisions for another person. Many people assume their spouses or children will automatically be allowed to make medical, personal and/or financial decisions for them, but this is not necessarily so.
Even though we all know of situations where health care providers and others have turned to the immediate family to make decisions under these circumstances, actually the law provides that only someone with the legal right to make such decisions -- or otherwise act on behalf of someone else -- can do so. You don't want to take chances on how things might go in a medical emergency. And, certainly, when it comes to financial decisions, or taking action in court or banking situations, legal authority to act is imperative.
The basic documents that provide such authority are known as Advance Directives and include a Power of Attorney, a Living Will, and a Health Care Proxy. (1)
In the absence of Advance Directives, a Guardianship proceeding would then have to be brought in Court to have the Judge appoint someone to make such decisions. To avoid the necessity of a costly and lengthy Court proceeding, and to make sure that your wishes are expressed and the authority to carry them out is given, Advance Directives must be put into place.
Power of Attorney
A Power of Attorney is a legal document that allows one person (called the principal) to appoint someone else (called the agent or attorney-in-fact) to act on his or her behalf. The powers that can be exercised by the agent can be broad or narrow; the principal chooses them, in advance. You might, for example, authorize your agent to do a specific thing (e.g., sell your house) or you might give the authority to do any legal act you could do yourself.
There are three different types of Power of Attorney:
A conventional Power of Attorney gives the agent whatever powers the principal chooses, often for a specific period of time, beginning when it is signed.
A durable Power of Attorney stays in effect for the principal's lifetime, beginning when it is signed. It contains specific language stating that the agent's power is to stay in effect even if the principal becomes incapacitated.
A springing Power of Attorney "springs" into effect upon a specific event, such as when the principal becomes incapacitated. It must be carefully drafted so that there is no difficulty determining when the springing or triggering event has occurred.
By signing a Power of Attorney, you are not giving up your right to act in your own behalf; you are instead empowering your agent to also act when and how you have directed. Also, it's important to note that you can revoke, or cancel, a Power of Attorney at anytime, and you do not need to give a reason for doing so. If you do make changes to your Power of Attorney it is a good idea to let all involved parties know of your decision - particularly your appointed agent and anyone they may be dealing with, as well as your attorney.
All Powers of Attorney automatically end when the principal dies. Consequently, your agent's powers do not overlap with those of the executor of your estate. Choosing an agent is an important decision. You need to trust the person completely, and you need to make sure they are capable of performing the job.
A Living Will allows you to specify the kind of treatment you want in particular situations, especially what happens if you are terminally ill. For example, you might choose to specify that you do not want to be treated with antibiotics if death is imminent. Or that treatment is to be withheld if it only serves to prolong your death. You can ask that maximum pain medications, however, be given even if they hasten death.
Health Care Proxy
The Health Care Proxy identifies the person you've chosen to make medical decisions for you if you become unable to do so yourself. It is activated anytime you're unconscious or unable to make medical decisions.
In choosing an agent, keep in mind the following: Most states disqualify anyone under the age of 18, as well as and your health care provider and its employees, to act as your agent. Furthermore, the person you name as your agent must be willing and able to advocate on your behalf, deal with conflict among friends and family members should it arise, and must understand and respect your wishes. Needless to say, the person must be someone you trust with your life.
Although death is a difficult subject to bring up, it is a good idea to discuss these issues with friends, family members, and your agent to ensure that they understand your values and beliefs.
Once you've finalized Advance Directives, give copies to your family, agent, and your health care providers.