Power of Attorney and other Super Powers

Healthcare Power of Attorney, Financial Power of Attorney and Do Not Resuscitate Orders (commonly called DNR).

 This entry is the second in a series that attempts to demystify trust and estate planning documents and tools. This week we will cover Healthcare Power Of Attorney, Financial Power Of Attorney and Do Not Resuscitate Orders. Below are explanations that cover the legal aspects of the documents and include how medical providers deal with these documents.

HEALTHCARE POWER OF ATTORNEY

What is a Healthcare Power Of Attorney? A Healthcare Power Of Attorney, let’s shorten it to HPOA from here on out, is a document that allows you, the grantor (as in the person granting the power to another) to select someone you trust to act as you agent in matters of your medical healthcare. In other words, this document formally gives power to another to make medical decisions on your behalf.

How is this different from a Will? A Will may allow someone to make decisions concerning your healthcare when you pass, but the HPOA allows someone to act on your behalf in the instance when you are incapacitated, even if only temporary.

What are the benefits of a HPOA? It can prevent delay in medical treatment. Without one, someone will have to go to the local courthouse to ask for the right to act as your guardian.

But doesn’t my spouse automatically have the power to make medical decisions on my behalf if I am incapacitated? Generally, a spouse will make medical decisions, but there are cases where a spouse’s powers have been contested. One very famous case was the Terri Schiavo Case. Terri was kept on life support while her husband and parents battled in court to decide who had the right to determine what happened to the Mrs. Schiavo while she remained in a vegetative state for fifteen years. (We will talk more about the Schiavo case when discussing the Living Will.) An explicit designation through an HPOA, along with a frank discussion loved ones, can take some of the conflict out of end- of- life or incapacity scenarios.

 How do healthcare practitioners use an HPOA? Glad you asked. I asked an Emergency Healthcare physician and he told me that in the case where a family member does not agree with another family member on the method of care or treatment, the HPOA becomes the final word to the doctors. The person listed as the agent has the final say and the doctor will follow their orders. Without a HPOA, doctors will not go through with a contested treatment. Healthcare providers are also very reluctant to take a person off of life preserving treatment without proof of HPOA, especially when contested.

 Will my agent have access to my medical records? Yes, with the addition of a HIPAA authorization in your HPOA, your agent will have access to your medical records and the ability to direct the use of those records by healthcare providers.

 Can my healthcare agent be sued for acting on my behalf?

No, your healthcare agent is presumed by the court to have the authority to make decisions on your behalf without being personally responsible for the legal ramifications, so long as she is acting in good faith.

 Example: You name your best friend your agent in your HPOA. After an accident you are left in a vegetative with a very low chance of recovery. Prior to your accident you explained to your dear friend clearly that you did not want to be artificially kept alive for longer than three months in this condition prior to your accident. Following your wishes, after three months in a vegetative state, your friend follows your wishes to remove all artificial health aids and you pass. Your family may not sue your friend emotional distress following your death.

 Who needs an HPOA? Anyone susceptible to death (i.e. everyone). Same sex partners in states that do not acknowledge same sex marriages my find this document particularly helpful. There are horror stories of partners being shut out of the end-of-life-decision-making process by disapproving family members or being denied hospital room access because the hospital does not consider them a “family member”. Arizona prohibits common law marriage (and only acknowledges to some degree those valid in other states) so unmarried/ cohabitating partners should strongly consider a HPOA.

FINANCIAL POWER OF ATTORNEY

What is a Financial Power of Attorney? A Financial Power of Attorney (from here we'll refer to it as FPOA is a document in which you, the grantor, give another person the power to make financial decisions on your behalf.

What powers does an FPOA give my agent? Your agent may enter a safe deposit box rented or held by you, deposit and withdraw from your bank accounts, pay bills, pay the cost of healthcare and treatment. They can also purchase, lease, sell, assign, convey, mortgage, abandon, and improve upon property. Agents may borrow money, use a credit card, and sue on your behalf. The list goes on and in general includes anything you can do financially. 

Do I need this if I have a trust? Yes, The FPOA gives your agent the power to cover those items not included in your trust. There are some items that are traditionally left out of a trust, such as IRA and Life insurance benefits.

How should I store the FPOA? As with all of your wills and estate planning documents, you should make sure of the following:

 1) The agent (person you've granted the power to) should know that you've named them as your agent.

2) The agent should know where the FPOA documents are kept, have access to a copy, and/or have a copy of the FPOA.

3) You also have the option of leaving a copy with your attorney with instructions to deliver the FPOA upon the occurrence of certain events.

What about my agent’s ability to be sued? A carefully crafted FPOA should make mention of the grantor’s intention to ratify the acts of the person acting on their behalf. Ratification is the idea that the grantor intends for the agent to act on their behalf, so that their actions are considered the actions of the grantor, not their own and they are protected from being held responsible for any acts done in good faith.

Tip: It is a lot of power, so it is important to choose carefully.

Durable Powers- durable powers are those powers that survive the grantors incapacity. Non-durable powers terminate if the grantor becomes incapacitated and the agent will not be able to act on the grantor's behalf. If your intention is to ensure that your agent is able to act on your behalf in any medical situation, it important to make sure that your document grants Durable Powers.

Tip: Stuff happens; make sure you review your Powers of Attorney and all estate planning documents after major life events and every few years. You may get married, discontinue a friendship or simply change your mind about how much you trust a designated agent.

DO NOT RESUSCITATE ORDERS

What is a Do Not Resuscitate Order? A Do Not Resuscitate Orders, commonly called DNR, is a legal document that is used to tell emergency medical responders and other healthcare providers that the patient does not want to be resuscitated if breathing stops or their heart stops beating.

How does it work? It tells healthcare providers NOT to perform CPR (Cardiopulmonary Resuscitation) in the event the heart stops or the patient stops breathing?

Who would want a DNR? DNRs are only created after careful consideration by those who facing the end of life due to terminal illness and or old age.

Who may draft a DNR? Only a doctor may issue a DNR after talking with a patient. A family member or the agent designated by a Healthcare Power of Attorney of the patient my work request a DNR from a doctor if the patient is already incapacitated.

Does it prevent all medical attention? No, a DNR will not prevent healthcare providers from administering pain medications and or nutrition unless otherwise stated.

Can a DNR be revoked by the patient? Absolutely. An emergency healthcare physician described a common occurrence where an injured person who has a DNR and is still lucid is brought into a hospital. Patients may, and oftentimes do, explain that they have a DNR but want CPR in the event they stop breathing or experience heart failure.  The DNR is effectively rendered ineffective.

Can a family member revoke the DNR? No, a family member may not override a valid DNR.

Tip: It is a good idea to discuss the existence of a DNR with loved ones and/or your agent named in your Healthcare Power Of Attorney. This conversation can spare your loved ones surprise and some heartache when your DNR takes effect.

A very special thanks to Dr. JohnAllen Houston for answering my questions about the medical perspective on estate planning documents. He provided very thoughtful commentary on how emergency healthcare providers view these documents and how they must ethically and legally respond to these documents or the lack thereof.

The next installation will cover the “Who's Who” of estate planning. After writing this entry I realized how many specifically named roles and designations there are in estate planning. This entry included grantor and agent. Next week’s will cover Testator, Beneficiary, Trustee, Trustor, Grantor, Executor, Guardian, Conservators and a few more. If there is a term or explanation in this post that is still unclear please ask for clarification by posting your inquiry in the comments section or emailing us at Info@KeovonneWilsonLegal.com

Keo'vonne W.

"Turn Your Dream Into Your Legacy"