Planning for Incapacity

A durable power of attorney allows someone you designate to carry on your financial affairs in the event that you can no longer do so. Unless you have a properly drafted power of attorney, it may be necessary to apply to a court to have a guardian or conservator appointed to make decisions for you when you are disabled. This guardianship process is time-consuming, emotionally draining on your loved ones, and expensive, often costing thousands of dollars.

There are generally two types of durable powers of attorney: an "immediate" durable power of attorney; or a "springing" durable power of attorney that only comes into effect upon your subsequent incapacity, as defined by you and your doctor. Anyone can be designated as your agent, usually your spouse, a trusted family member, or a friend. Executing a power of attorney assures that your wishes are carried out exactly as you want them and allows you to decide who will make decisions for you.

Generally, any individual over the age of majority and who is legally competent can establish a power of attorney.

In general, an agent (or "attorney in fact") may be anyone who is legally competent and over the age of majority. Most individuals select a close family member such as a spouse, sibling, or adult child, but any person, such as a trusted friend or a professional with an outstanding reputation for honesty may serve. You may appoint multiple agents to serve either simultaneously or alternately.

You may appoint someone you trust to make decisions concerning your medical treatment should you lose the ability to decide for yourself. You can do this by using a Durable Power of Attorney for Health Care or Health Care Proxy, where you designate the person or persons to make such decisions on your behalf. You can allow your health care agent to decide about all health care or only about certain treatments. You may also give your agent instructions that he or she has to follow. Your agent can then make certain that health care professionals follow your wishes. Hospitals, doctors and other health care providers must follow your agent's decisions as if they were your own when presented with your Health Care Power of Attorney.

A Living Will informs others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding treatment. Almost all states have instituted living will laws to protect a patient's right to refuse medical treatment.