Power of Attorney Questions
What is a Durable Power of Attorney?
What is an Advance Health Care Directive or a Durable Power of Attorney for Health Care?
What is a Durable Power of Attorney for Financial Matters?
A Power of Attorney gives another person (the “agent” or “attorney-in-fact”)* the power to make transactions or decisions in your name. A specific power of attorney is limited to one or more specific purposes, such as the power to sell a particular piece of property. For instance, you may be in the middle of a transaction and have to go into the hospital, or you have a vacation planned. You may give someone you trust your power of attorney to carry out that specific transaction. A general power of attorney gives your agent broad powers to conduct all sorts of business in your name and to sign your name to all sorts of documents. *Literally, an “attorney” is someone to whom you give over the power to speak for you. I am an “attorney at law,” because I can speak for you in a court of law. Your agent under a power of attorney is also known as your “attorney-in-fact,” because s/he can speak for you in factual matters.
What is a Durable Power of Attorney?
A power of attorney normally expires if the person granting the power (the “principal”) becomes incapacitated or incompetent. A Durable Power of Attorney continues to be effective even if the principal becomes incapacitated – or it may be worded so it only becomes effective when the principal becomes incapacitated. This is the only difference between a power of attorney and a durable power of attorney. If it does not contain a definite expiration date, a durable power of attorney lasts until the death of the principal or until the principal revokes it.
What is an Advance Health Care Directive or a Durable Power of Attorney for Health Care?
Who will make medical decisions for you if you are unable to make them for yourself? Do you have specific wishes regarding artificial or extraordinary life-sustaining measures? Are you in favor of, or opposed to, an autopsy of your body after your death? Do you wish to be an organ donor? A Durable Power of Attorney for Health Care addresses all of these issues. An Advance Health Care Directive addresses the same issues, but additionally specifies your choice of a doctor to carry out your wishes. These documents are sometimes referred to as “living wills.” A Durable Power of Attorney for Health Care gives the person you name (your “agent” or “attorney-in-fact”) the power to make medical decisions for you if – and only if – you are unable to make those decisions yourself or unable to communicate your wishes to your doctor. In such a case, your named agent has priority over all other persons in making health care decisions for you. And these decisions are legally enforceable. If your doctor, or the hospital, does not agree with your agent’s directions regarding your medical care, a court of law can compel your medical providers to abide by your wishes regarding life-sustaining measures or choice of medical treatment. Your agent cannot, however, authorize a commitment to a mental hospital, convulsive treatment, psychosurgery, sterilization or abortion. The State of California has authorized a pre-printed Advance Health Care Directive. To be honest, this form isn’t nearly as complete as one prepared specifically for you by an attorney.
What is a Durable Power of Attorney for Financial Matters?
A Durable Power of Attorney for Financial Matters may grant to your agent (or “attorney-in-fact”) the power to take the following actions (and more) in your name: buy, sell, trade, lease, mortgage and insure real and personal property, handle cash and business affairs, file a lawsuit, hire attorneys and accountants, deal with the IRS and insurance companies, etc., etc. As only one example, you have been in a serious auto accident and are either permanently brain damaged or in a medically induced coma. Your spouse needs to sell your house, or cash in a retirement plan, or take some other action that would normally require the signatures of both spouses. If you have given your spouse your power of attorney to take care of these matters, s/he can sign your name to almost any legal document. (It is important to note that your agent does have the power, but not the right, to sell all of your assets and take off for a luxurious retirement in the Bahamas.) If you completely trust your agent, the combination of a Durable Power of Attorney for Health Care and a Durable Power of Attorney for Financial Matters can prevent the need for a court-ordered conservatorship should you become incompetent. The State of California has authorized a pre-printed Durable Power of Attorney for Financial Matters. Again, this pre-printed form isn’t nearly as good as one prepared for you by an attorney.
The brief articles on this page are for informational purposes only. They are not, nor are they intended to be, legal advice. They do not, nor are they intended to, establish an attorney-client relationship. You should consult an attorney for individual advice regarding your specific situation.