A common question I get asked is, “Why do I need a Health Care or Power of Attorney?” The short answer is because only YOU can make a health care decision on your behalf or sign your own name.
It is important to differentiate between a Power of Attorney for Health Care (HCPOA) and a Power of Attorney for Property (PPOA). If a doctor or other medical professional cannot communicate with you about your health care needs, whether it is because you are mentally incompetent or physically incapacitated (i.e. in a coma), a HCPOA allows someone else that you appoint to talk to the doctor and make a decision on your behalf. This authorized person is called your “agent.” A key component of the HCPOA is that the agent is making YOUR decision for you. It is not the agent’s decision or based on how the agent feels about a certain situation; rather, it is based on what you noted in your HCPOA and what you discussed with your agent (hopefully) prior to your incompetency or incapacitation.
A perfect example of what can go wrong when not having a HCPOA in place is the Terry Schiavo case from Florida. In 1990, Schiavo suffered major cardiac arrest, and a few months later was declared to be in a permanent, vegetative state. In 1998, Schiavo’s husband petitioned the court to remove her feeding tube, which was opposed by Schiavo’s parents. After many court filings and appeals to the Florida and US Supreme Court, the court’s decision to remove the feeding tube was upheld in 2005, and she died shortly thereafter. The problem was that Schiavo did not have a HCPOA in place. Therefore, no one had the legal authority to instruct the doctors on what to do without court supervision.
A PPOA allows your legally appointed agent to sign your name on your behalf and to handle your financial affairs. If you were to become mentally incompetent or physically incapacitated, who would continue to pay your monthly bills on time so your mortgage is current and your gas and electricity aren’t shut off? If you do not have a PPOA in place, there is NO ONE else that has the legal right to access the proper accounts and take care of your financial matters for you.
If you do not have a HCPOA or PPOA, a legal guardian will need to be appointed by a court to allow someone to make health care decisions for you or to be able to legally sign your name. A guardianship is a costly and time-consuming process. An attorney must appear in court a minimum of three times before the permanent guardian is appointed. Once appointed, the guardian must file an annual accounting with the court every year showing what money has come in to the estate and what money has been paid out from the estate. This can be a very arduous process when the person whom the guardianship is being sought for is not agreeable (typically due to their mental incompetency). This is called a “contested guardianship.”
To avoid the potential of any costly and unnecessary court proceedings, you should consult with an attorney to ensure that you have valid Powers of Attorney for Health Care and Property in place. This will not only protect you, but will save your loved ones a lot of aggravation and expense in the future.
Guest blogger, Matthew R. Margolis of Margolis Weldon assists his clients with their Estate Planning and Elder Law needs, including Special Needs, Trust Administration, Decedent's Estates and Guardianship. The firm counsels clients from birth to death and ensures that their Estate Planning documents reflect the different stages of their lives. Margolis Weldon safeguards clients' legacies by confirming that Estate Planning documents are appropriately incorporated into their planning goals. For more information on their services, please visit their website at www.margolisweldon.com.