A property power of attorney can be a very helpful estate planning tool because it provides a way for you to select a person you trust to manage your affairs if you are unable to do so. As the principal, or creator of the power of attorney, you have the authority to choose who you want to act on your behalf as your “agent” or “attorney-in-fact.” A durable healthcare power of attorney is probably the best option when it comes to making healthcare decisions should you become incapacitated.
The benefits of a durable power of attorney
When a power of attorney is designated as “durable” it means the agreement will remain in effect even if you become incapacitated in any way. This is not true for a standard power of attorney that has not been drafted to be “durable.” A durable power of attorney can also be drafted so that it only becomes effective once your incapacity has been established by the court. It is your decision as to how you want it to work.
Durable Power of Attorney for Health Care
A Durable Power of Attorney for Healthcare is used specifically for the purpose of appointing an agent to have the authority to consent to medical treatment on your behalf or to withhold certain medical treatment, if that is your choice, provided you are incapable to do so. This estate planning tool allows you to discuss your expectations regarding your future medical treatment with your agent now, while you are still capable of doing so.
Can anyone create a durable power of attorney for health care?
In order to execute a power of attorney that will be considered legally valid, you must be considered “legally competent” at the time you create it. In order to enter a legally binding agreement, you must have reached the age of majority for your state. In Kentucky, the age of majority is eighteen (18).
Who can you select to be your agent?
The agent you choose to make healthcare decisions on your behalf can be a spouse, partner, relative, or close friend. There are some limitations as to who can be an agent. In most states your agent cannot be:
- your health care provider
- an employee of your health care provider
- an operator of a health care facility, or
- an employee of a health care facility
These limitations do not apply, though, to your spouse, legal guardian, or next of kin. So for example, if your spouse happens to be employed at a health care facility, the restriction would not apply.
The advantages of a healthcare power of attorney
When drafted correctly, your power of attorney can essentially eliminate the most common family disputes that arise concerning your health care decisions. Instead of leaving your family to argue over what actions should be taken on your behalf, your choices regarding medical treatment will be recorded in a legal document, which the court will view as the best evidence of your intent.
Understanding the “advance directive”
An advance directive refers to the combination of a durable healthcare power of attorney and a living will. A living will is much like a durable power of attorney in that it allows you to specify your wishes regarding healthcare in the event you are unable to make medical decisions for yourself at any point. The difference between an living will and a healthcare power of attorney is that the living will spells out the specific instructions your agent must follow with regard to your medical treatment. You can use your living will to direct as much or as little as you want regarding your healthcare. Despite the name, a living will is not the same as the conventional will used to leave property to your loved ones upon your death.
Revoking a health care power of attorney
If you want to revoke a healthcare power of attorney, you must provide written notice to your attorney-in-fact or agent. It might also make sense to file a copy of your written notice of revocation with the court. By taking this additional step, there should be no disagreement or uncertainty about your revocation. Once you become incapacitated, though, only the court can revoke the authority you have given your agent. In that situation, a petition would need to be filed with the court by someone on your behalf.
Attend a FREE seminar! If you have questions regarding a healthcare power of attorney, or any other estate planning matters, contact Gersh Law Offices, P.S.C. for a complementary consultation either online or by calling us at (502) 423-7023.