Powers of Attorney & Advanced Directives

Most people are aware of the need to have a power of attorney as a part of their overall estate plan. Many people, however, are unaware of the difference between traditional powers of attorney and durable powers of attorney. Often times, there is also confusion between a power of attorney and a guardianship.  Powers of attorney are most suited for estates that have few disputed issues. With guardianships, the court appoints a guardian to watch over the welfare of an individual.  A durable power of attorney becomes effective and is meant to last throughout a person's incapacitation. Unlike a guardianship, a power of attorney does not need court approval before it becomes effective.

Durable powers of attorney and health care directives enable people to entrust their financial and health care agent with their most intimate and personal decisions in the event of and during their incapacity. They are written instructions prepared in advance of incapacitation and are important legal tools. They were instituted as recognition that every individual has a fundamental right to control his or her medical decisions. Traditional powers of attorney are designed to end upon the person’s incapacitation. In most situations, a durable power of attorney provides adequate means to protect an individual. Our firm can help you draft the following documents:

• Living Wills – deals only with end of life decisions and are limited as to what they can accomplish. They direct the doctor to withhold or withdraw death-delaying procedures in the event of a terminal illness and do not allow for withdrawal of nutrition. They become effective only upon a terminal illness or permanent vegetative state.
• Health Care or Property Durable Powers of Attorney – allows an individual to give someone else the authority to make health care or property decisions about life-sustaining procedures and any other medical treatment he or she wants or does not want performed on his or her behalf. The key to durable powers of attorney is that they remain effective during periods of incapacitation, unlike traditional powers of attorney.
• Mental Health Treatment Preference Surrogate – established to allow adults of sound mind to express their preferences specifically regarding mental health treatment should they require such treatment. If the individual does not appoint a surrogate, a guardian would be appointed and a separate hearing held to determine his competency.

While a financial or medical power of attorney may be less costly to create, it does have its disadvantages. Unlike a guardianship, a person with a power of attorney does not need to obtain court approval on a yearly basis. This may leave the conduct of the person with the power of attorney open to legal challenges at a later date, often after the person has passed away. If disputes do arise concerning a person who has a power of attorney, we can represent him or her in court actions. Our firm will help you determine potential problems and whether a power of attorney or other options is most suited for your situation. If you want to learn more about a power of attorney, contact us for a free initial consultation with an experienced attorneys.