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A durable power of attorney for property and a health care power of attorney are two very important, yet very different, estate planning documents. Both allow other people to make decisions for you in the event you are incapacitated.

Life Care Planning, Estate Protection, Disability,
VA & Medicaid Assistance Lawyers

Avoid Disagreements Between Your Health Care and Property POA

 

Just as we create estate plans for our eventual demise, we also need to plan ahead for the possibility that we will become sick and unable to make our own medical decisions. Medical science has created many miracles, among them the technology to keep patients alive longer, sometimes indefinitely.

 

Power of Attorney for Property

 

For most people, the power of attorney for property is the most important estate planning instrument available - even more useful than a will. A power of attorney allows a person you appoint - your "attorney-in-fact" or agent - to act in your place for financial purposes when and if you ever become incapacitated.

 

In that case, the person you choose will be able to step in and take care of your financial affairs. Without a durable power of attorney, no one can represent you unless a court appoints a guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer. In addition, under a guardianship, your representative may have to seek court permission to take planning steps that she could implement immediately under a durable power of attorney that specifically permits gifting and other similar types of planning.

 

Power of Attorney for Health Care

 

If an individual becomes incapacitated, it is important that someone have the legal authority to communicate that person's wishes concerning medical treatment. Similar to a power of attorney for property, a power of attorney for health care allows an individual to appoint someone else to act as their agent, but for medical, as opposed to financial, decisions. The health care power of attorney is a document executed by a competent person (the principal) giving another person (the agent) the authority to make health care decisions for the principal if he or she is unable to make or communicate such decisions. By executing a health care power of attorney, principals ensure that the instructions that they have given their agent will be carried out. A health care agent is especially important to have if an individual and family members may disagree about treatment.

 

Appointing Your Agent

 

A durable power of attorney for property and a health care power of attorney are two very important, yet very different, estate planning documents. Both allow other people to make decisions for you in the event you are incapacitated. Because the individuals chosen will have to coordinate your care, it is important to pick two people who will get along.

 

While the health care agent is the one who makes the health care decisions, the person who holds the power of attorney for property is the one who needs to pay for the health care. If the two agents disagree, it can spell trouble. For example, suppose your health care agent decides that you need 24-hour care at home, but the agent you named in your power of attorney for property thinks a nursing home is the best option and refuses to pay for the at-home care. Any disagreements would have to be settled by a court, which will take time and drain your resources in the process.

 

The easiest way to avoid conflicts is to choose the same person to do both jobs. But this may not always be feasible - for example, perhaps the person you would choose as health care agent is not good with finances. If you pick different people for both roles, then you should think about picking two people who can get along and work together. You should also talk to both agents about your wishes for medical care so that they both understand what you want.

 

Medical Directive

 

An Advance Medical Directive should accompany a power of attorney for health care. Such a directive provides the agent with instructions on what type of care the principal would like. A medical directive can be included in the health care power of attorney or it can be a separate document.

 

Living Wills

 

Living wills are documents that give instructions regarding treatment if the individual becomes terminally ill or is in a persistent vegetative state and is unable to communicate his or her own instructions. If an individual would like to avoid life-sustaining (death-delaying) treatment when it would be hopeless, he or she needs to sign a living will. A living will takes effect only when a person's condition is terminal and he or she would die within a short time but for the use of death-delaying medical procedures. A living will is not set in stone; an individual can always revoke it at a later date if he or she wishes to do so.  A living will, however, is not a substitute for a power of attorney for health care or broader Advance Medical Directive. It simply dictates the withdrawal of life support in instances of terminal illness.

 

Do-Not-Resuscitate

 

Do not confuse a living will with a "do not resuscitate" order (DNR).  A DNR says that if you are having a medical emergency such as a heart attack or stroke, medical professionals may not try to revive you. This is very different from a living will, which only goes into effect if your medical condition is terminal. Everyone can benefit from a living will while DNRs are only for very elderly and/or frail patients for whom it wouldn't make sense to administer CPR.

 

Richard Habiger is the author of the Illinois edition of How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets and is an elder law attorney, who focuses on asset protection, Medicaid and VA benefits. You may contact him at 618-549-4529 or info@HabigerElderLaw.com.

 

 


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1808 Clark Street, Carterville, Illinois 62918
Phone: 618-985-4529
Toll Free: 800-336-4529

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Phone: (618) 985-4529