It is a highly personal decision as to who should be chosen as your power of attorney. For most people, it will depend on facts like whether you are married, how close are you to your family relatives, and do you have dependable friends or family that you can trust with your finances or health decisions.
At the end of the day, the most important factors may be:
- Pick a person that you trust implicitly as your power of attorney
- Choose a person that is willing to serve as your power of attorney
- Select someone that has the ability to serve, for example someone that lives in close proximity so that they can meet with your doctor or take care of your banking.
There is no requirement that you choose a family member to serve as your power of attorney, so don’t feel that your choices are confined. We have many clients who have chosen a friend, church member, pastor, or even their lawyer, instead of their family members.
The overarching principle is pick someone you trust who will honor your wishes because they may be overseeing all of your money and deciding whether to remove you from life support.
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It used to be that powers of attorney only lasted for a definite period of time or until someone lost capacity or became disabled. Now, most powers of attorney are durable, which means that they last even during periods of incapacity by the grantor.
This change in practice is very helpful. After all, one of the reasons to use a power of attorney is to leave a decision-maker in place for finances or medical decisions after the grantor becomes incapacitated or disabled.
We get a lot of calls at the office about drafting wills, but no one ever calls about powers of attorney. Also, we have lots of clients that come in with a poorly drafted will that was done by some cheap lawyer or by the client himself, but give me a blank stare when I ask about powers of attorney. If you take nothing else from this post, please remember this: IF YOU PLAN FOR DEATH ONLY (AND NOT DISABILITY) YOU HAVE ONLY DONE HALF THE JOB.
I read somewhere that people under 40 years old are 4 times more likely to be disabled than to die. Therefore, if you only plan for death (i.e. a will), you are missing out on 80% of your legal need.
So what is a Medical Power of Attorney? It is a short document that gives an individual you designate the right to make health care decisions for you in the event that you are unable to make them for yourself. Typically, medical powers of attorney your doctor to be the one that certifies (in writing) that you are unable to make the decision.
So why do I need one? Your appointee (attorney-in-fact) will be the one to sign surgical consent forms, admit you to a hospital, and make key medical decisions. It is much better to have decided on one person you trust to make a decision than to have your family members arguing in the hospital hallway about what you would have wanted done. I have so many stories that I could tell you about family squabbles that could have been avoided with this simple document.
So what is the cost? This varies from state to state and attorney to attorney, but it really should take no more than an hour for an attorney to draft one. Most estate planning attorneys have some flat fee will package that includes a will and disability planning documents (medical power of attorney and others).
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With a Health Care Power of Attorney, you can decide exactly who will make health care decisions for you if you cannot. The Health Care Power of Attorney is a legal document that designates what family members or friends that you want to make critical health care decisions for you if you are incapacitated. You can even designate in what order those individuals will serve. The Health Care Power of Attorney ends the guessing game about which family member will make decisions at the hospital when time is of the essence. No more family disagreements about who will make that decision. Instead, one person is clearly designated to make decisions for you.
In addition to the power of attorney, you can also make known exactly what treatments you desire through a Medical Directive or “Living Will”. In a living will, you can state exactly what life sustaining treatments you desire if you have a terminal or irreversible medical condition. You can also specify if you want to donate your organs.
Finally, in the most critical of cases, you may want to sign a “Do not resuscitate order”. In that order, you can provide that, due to a deteriorating medical condition, you no longer want life-saving medical procedures performed, but instead want to be allowed to die as peacefully as possible. I only recommend the do not resuscitate order to clients with extreme medical circumstances.
I recommend that all of my clients have a Health Care Power of Attorney and a Living Will just in case they are seriously and unexpectedly injured. These are commonly signed at the same time as new wills.