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Purpose: The Statutory Durable Power of Attorney is an essential estate planning document. It deals with money, property, financial actions, and administrative matters. Everyone needs this document. All Powers of Attorney are not the same. At The Bond Law Firm, the Power of Attorney will be designed to meet the needs of the client.
How it Works: In a financial power of attorney, one person is giving another the power to handle his or her affairs in the event they are not able to do so. These powers either go into effect upon disability or they remain in effect if a person is disabled. When a person dies, all powers of attorney cease to function. The power of attorney is null and void once a person dies. After death, the Last Will and Testament, the Living Trust, joint account with right of survivorship, or beneficiary designations govern the distribution of property.
Licenses to Steal: Financial powers of attorney are often called “licenses to steal” since they have been involved on countless occasions in unauthorized or intended transfers of property to one child or individual instead of the beneficiaries that were intended under a person’s Will. Therefore, selection of a trustworthy and honest agent is critical.
Why It’s So Important: Since financial powers of attorney are frequently misused, one might think that there would be an advantage in not creating one. However, most people will reach a point when they need the honest and loving attention of someone to help with their financial affairs. Without a financial power of attorney, a family member may not be able to do important actions for the person. In some cases, this may force the need to go to court and establish a Guardianship. Establishing a Guardianship is expensive and time-consuming. Therefore, most people need to select one or more people to act as the person’s agent under a Financial Power of Attorney.
All Forms Are Not the Same: Powers of Attorney can be written in many different ways. At the Bond Law Firm, ours are customized to fit our client’s needs. They are also tailored to provide the powers necessary to do Medicaid Planning for nursing homes.
Health Care Power. Everyone needs a Health Care Power and a Living Will. These documents are also called Advance Directives. The two documents are frequently combined into one document. The Health Care Power allows your agent to make course-of-treatment decisions if the person cannot make the decision themselves. Hospitals usually ask if you have these forms when a person is admitted to the hospital. Physicians want to know who will make treatment decisions if the person is unconscious, if the person is too sick to decide for themselves, or if the person is temporarily incapacitated.
HIPPA Power. The Health Care Power should also have a provision allowing the agent to obtain medical records for the person if he or she is incapacitated. Older Health Care Powers may not have these provisions. The passage of the HIPPA law in 2003 was designed to protect patients’ privacy rights. Therefore, since 2003 it has been important to have specific provisions in the health care power allowing the agent to access the person’s records.
Living Will or Directive to Physician. The Health Care Power is often confused with the Living Will or Directive to Physician; however, they are used for different purposes. The Living Will or Directive is the “pull-the-plug” document. It is very limited. It only goes into effect if the person is in a terminal or irreversible condition, requires some form of life support, and cannot speak for himself or herself as determined by the physician (or the physician and agent, depending on how the document is written). If those conditions are met, then the document says to allow the person to die, keeping them as comfortable as possible, or it says to keep the person alive with all medical resources. The document can be customized if desired.
Name More Than One Agent: The person creating the documents should name a primary agent and at least one back-up agent if that is possible.
“Do Not Resuscitate Order.” These forms are often confused with other Advanced Directives. The Order is prepared in consultation with the person’s physician. Most people would not want to execute this document. It is used most often by very elderly people who are living in a nursing home or who are in very feeble condition. This document says that the person does not want to be resuscitated if they collapse. The purpose is to stop emergency medical technicians or others from trying to restart a person’s heart or breathing.