If you are an adult, especially an experienced adult (ie Senior), it is time to review (or create, if you have not already done so) two necessary legal documents that cover during life care, senior care and end of life care: your powers of attorney and your advance directives (also called a living will). In this blog post, I will cover the difference between these documents and the importance of each.
Power of attorney documents
Power of attorney is assigned by a “principal” (you, ) to an “agent,” also known as an “attorney-in-fact,” giving that person legal authority to make decisions for you on your behalf if you become incapacitated, mentally or physically. Your agent can be a spouse, adult child, relative, or friend. Most importantly, it should be someone you trust to act in good faith at all times on your behalf. While there are general guidelines for designating an agent, specific laws around the creation of a power of attorney do vary from state to state, so always consult with an experienced attorney before you sign a power of attorney designation document. If you reside in two different states throughout the year, or plan to move to a new state, then you should have documents prepared for each state where you live. Hello, snow birds!
When the power of attorney document is created, you decide the amount of power that will be granted to your agent. The agent can be given the power to handle only one particular issue (referred to as a specific power of attorney), or he or she can be given authorization to take care of nearly all of the principal’s personal and financial affairs (known as a general power of attorney). The most common specific power of attorney documents include:
Special power of attorney document, which grants the attorney-in-fact control over only one named task (for example, selling a home or running a business).
Durable power of attorney document for finances, giving the agent the ability to make financial decisions for the principal.
Durable health care power of attorney document, which allows the agent to make healthcare-related decisions should you become mentally or physically incapacitated. Typically, a physician must determine that you are unable to make your own medical decisions before a health care power of attorney can go into effect.
The agent is required to keep accurate records of all transactions made on behalf of the principal, and he or she is also responsible for understanding which specific types of decisions he or she has the power to make (versus what they do not have the authority to decide).
It is worth repeating that you should choose an agent who you trust without a doubt to make the correct decisions on your behalf. Additionally, you should also be sure another trusted individual knows who your chosen agent is and where the power of attorney documents are located.
Advance directives documents (also known as a living will)
Advance directives are a written document that helps guide the health care choices made by doctors, medical staff, and caregivers if you should become terminally ill, seriously injured, in a coma, in the final stages of dementia, or near the end of your life.
States have different laws and forms required to create this legal document, and some may require a signature from a witness and/or a notary, but advance directives should always be in writing. Similar to the Power of Attorney Documents above, if you reside in two different states throughout the year, or plan to move to a new state, then you should have documents prepared for each state where you live. If you move from one state to another, this is a document which you MUST update!
The Conversation Project and Begin the Conversation have helpful tools to help seniors assess their values and discuss their wishes with family and loved ones. It is also useful to include in your advance directives document your preference on becoming an organ or tissue donor at the end of your life.
Once you finalize your advance directives documents, you should:
Keep the originals in a safe but easily accessible place
Give a copy to your physician
If you live in a continuing care retirement community (CCRC), give a copy to the healthcare facility
Give a copy to your agent and/or healthcare agent
Make note of who has copies of your advance directives should you decide to amend/update them
Discuss with loved ones and other important people (your attorney, for example) your advance directives and your overall healthcare wishes
Consider carrying a card in your wallet indicating that you have advance directives, who your healthcare agent is, and where a copy of your document can be found
Be prepared for the unknown
Seniors should review their power of attorney and advance directives documents (as well as their last will and testament!) periodically to be sure they still accurately reflect their wishes. A lawyer should assist if you need to make an update or amendment to your power of attorney. If you need to change or update anything on the advance directives, complete a whole new document and refer to your list of who has a copy so they you may give them an updated version. To be extra sure that there are no problems when the time comes it may be a good idea to share these documents with your healthcare providers today so they can have them on file in advance. By preparing these power of attorney documents and healthcare directives before you need them, and filing them with your medical providers, you can save your loved ones (and yourself) a lot of potential heartache and stress.
This is a not a comprehensive list of powers of attorney and their uses, but it does cover the topics that I see most often.
Schedule a conversation with Justin Jeppesen to take the first step towards creating your complete estate plan, with your Powers of Attorney! With a Complimentary Initial Consultation we can explore your situation and plan for your future. If you have more questions, I'd love to help! Contact Jeppesen Law now: (208) 477-1785.