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Powers
of Attorney for medical and financial decisions are integral to
any estate plan. Many clients will have times when they are
unable, due to health or other medical reasons, to take care of
their financial affairs or make their own medical decisions. In
order to qualify the agent to serve, the powers of attorney
require an opinion of a physician that the client is unable to
make the decisions on their own. Physicians cannot render those
opinions without a HIPAA release.
What is a “durable power of attorney”?
Depending upon your age you are more likely to be
incapacitated or disabled than to die. All estate planning
should include a financial power of attorney naming a trusted
friend or family member to act on your behalf so that someone
can pay your bills, and take care of your financial affairs if
you are incapacitated or unable to manage your property. The
individual to whom you assign this financial power is your
“agent” or “attorney-in-fact,” and it should be someone you
trust a great deal. The word “durable” means that your power of
attorney remains valid even if you become incompetent. This is
an important point because without a durable power of attorney
for financial affairs there will have to be a court proceeding
for a guardianship. The court may appoint someone you do not
know and / or who has no “personal” interest in you. In
addition, this is a costly and time-consuming process. Remember,
your durable power of attorney is revocable at any time (as long
as you are competent). If you do not revoke it, your durable
power of attorney ends at your death.
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What is a “medical power of attorney” and a “directive to
physicians”?
A Medical Power of Attorney allows you to: (1) appoint a
person also known as an “agent” who can make health care
decisions for you in the event you are incapable of doing so.
Some of these decisions your medical agent can make on your
behalf include non-emergency surgery, assisted living and
rehabilitation elections. If you take the opportunity to name
this person before the Court does it on your behalf, you can
give your “agent” some important guidance on health decisions
before you are incapable of doing so. While it may seem as
though you are placing a significant responsibility on the
person you chose as your "agent," not having a health care
directive can be much worse. Without your guidance, there may be
dissention among your family members as to "who is in charge,"
and "what treatment you would want."
Can you avoid being the next the Terry Schiavo?
The Directive to Physicians is also known as a Living Will
and now the occasionally the “Terry Schiavo” document. We also
refer to it as the “Pull the plug” document. This is the
document that allows you to decide what you would like to be
done in the event that you are diagnosed with a terminal illness
or have an irreversible condition and the physician feels there
is no hope. Your directive guides your loved ones during these
difficult times. Without your guidance and stated preferences in
these situations, there may be dissension among your family
members and you could be the next Terry Schiavo.
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 HIPAA
The HIPAA Authorization and Release and inclusion of HIPAA
language in the Powers of Attorney is a release of medical
information. This medical release will allow the physician to
release your medical information and make the medical
determination that you are or are not able to make financial or
medical decisions on your own behalf.
Declaration of Guardian for Minor Children
This is one of the MOST important documents you can execute
if you have minor children. This appointment allows you to
decide who will raise your children in the event you and the
biological parent are deceased. There have been cases where a
child was placed in foster care when feuding family members
could not agree to let the child live with one or the other
family while the court made a decision in the “best interest” of
the child. With proper planning you can separate the loving home
and family who will raise your child from the financial
component of the funds available to raise your child and also
set some guidelines or criteria you would like the guardian to
respect while raising your child. Frequently this is the
stumbling block to coming to plan your estate. You cannot agree
with your spouse who will be responsible for your child. But can
you imagine a court choosing a guardian for your children. Or
worse - imagine your relatives arguing in court over who gets
your children—or having them agree but not on the people you
would have chosen.
Once you’ve made your choice, there are steps you can take to
make sure the potential guardians you’ve chosen will have
guidance and support they need. Here are a few ideas:
Create a set of guidelines to convey information about your
children, your parenting values and your hopes and dreams for
your children. (We can assist you in creating a “Guidelines for
Guardians” handout.)
Set up a trust that will hold the assets you pass to your
children, and instruct the trustee to provide necessary
financial assistance to the guardians or specific instructions
about special things you’d like the trust funds used for (for
example, annual trips for your children to visit close friends
and relatives, a particular sport or summer camp, putting in a
swimming pool at the guardians’ house)
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