A comprehensive estate plan will go beyond the postmortem transfer of monetary assets. To be fully prepared, you should address the contingencies that you may face during the latter portion of your life. Incapacity is one of these eventualities.
It is quite possible that you will become unable to make all of your own decisions late in your life due to incapacitation. You can account for this possibility through the execution of a legally binding device called a durable power of attorney for health care.
Durable Power of Attorney or Health Care Proxy
A durable power of attorney for health care is alternately referred to as a health care proxy in some jurisdictions. With any power of attorney, you name someone else to act on your behalf. A typical standard power of attorney would not remain effective upon the incapacitation of the grantor. This is why durable powers of attorney are used for incapacity planning purposes.
When a power of attorney is designated as durable, it does remain active even if the grantor of the device becomes incapacitated.
Health care decisions may become necessary while you are in an incapacitated state. When you have a durable power of attorney for health care in place, the agent or attorney-in-fact that you name in the document would be empowered to make medical decisions on your behalf.
If you did not have a durable power of attorney for health care in place, your closest relative would be asked to make these decisions for you. For one reason or another, you may want someone else to act on your behalf. In addition to this, the matter of authority is completely and unquestionably resolved when you execute a durable power of attorney for health care.
Sometimes family members disagree with regard to the appropriate health care decisions. When there is no durable power of attorney for health care in place, legal wrangling can ensue. You can prevent this when you execute your durable power of attorney for health care.
Living Wills
A durable power of attorney for health care is an advance directive. The other advance directive for health care that is widely recommended is the living will. With a living will you state your wishes regarding the utilization of life-sustaining measures if you were to be in a terminal condition with no hope of recovery. These measure would include mechanical respiration and/or artificial hydration and nutrition.
If you have a living will in place, you may feel as though you do not need a durable power of attorney for health care. A durable power of attorney is still called for, because all of the possible medical contingencies that could arise are not going to be covered in the living will.
Paul A. Kraft, Estate Planning Attorney
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
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