Incapacity is not a topic most of us want to dwell on. However, for most of us, it is a very real possibility that often occurs without warning. Several estate planning documents address this issue, including powers of attorney and advance directives.
The Financial Power of Attorney
The person who signs a power of attorney (the “principal”) authorizes another person (the “agent) to act on his or her behalf. More than one type of power of attorney is available, and each assigns very specific powers.
In a financial power of attorney, the principal gives an agent the power to handle their financial affairs. This type of document is used to plan for future incapacity.
For example, you might become unable to handle your own financial affairs because of disease or an accident. Your agent would use the authority granted in your power of attorney to manage your finances with little or no interruption.
The Healthcare Power of Attorney
This document has the same structure as a financial power of attorney. However, instead of managing financial affairs, the agent named in a healthcare power of attorney makes medical and personal care decisions for the principal.
If you are suddenly unable to make your own medical decisions, then your agent can help you without the need for court intervention.
The Advance Directive
Besides being a power of attorney, the healthcare power of attorney is one of several documents known as advance directives. The living will is another common estate planning document that specifically addresses end-of-life care.
If no advance directive is available, a close family member might be allowed to make medical decisions under Act 169. However, family members might disagree on your appropriate medical care and without clear direction, medical providers will not get in the middle of a family dispute. The better option is to have your wishes spelled out in written form.
The Living Will
When facing terminal or end-of-life illness, some people prefer to stay alive as long as possible. Others focus on whether they can maintain their quality of life. There is no right or wrong choice here. What matters is having end-of-life planning in place so you can have more control over the outcome.
In Pennsylvania, living wills do not become active until certain conditions have been met. An individual’s terminal illness or inability to make end-of-life decisions triggers their healthcare power of attorney and living will.
Living wills have nothing to do with your last will and testament but apply to end-of-life care only. Specifically, your living will instructs your healthcare decision maker whether to withdraw life support or withhold medical care if you are terminally ill or in a vegetative state.
Your living will can prevent someone from approving aggressive treatment against your stated wishes.
What Happens If the Proper Documents Are Not in Place?
Without a financial power of attorney, no one can act on your behalf in financial matters. If you don’t have advance directives in place before becoming incapacitated, no one will have the power to make crucial medical decisions for you. Instead, a family member or someone else will have to ask the court to appoint a legal guardian. However, guardianships are not always the best option because the process:
- Is time-consuming, and
- Increases your legal fees.
A court-appointed guardianship also limits your control. The judge may appoint someone who does not know your healthcare and end-of-life preferences. Also, your guardian may have to seek court approval before taking action that is routinely permitted under your power of attorney. Well-drafted powers of attorney and living wills can help you maintain control.
Someone to Put the Plan Together
At Slutsky Elder Law, we help clients protect their future through powers of attorney, estate and asset protection planning, and guardianship proceedings.