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Power of Attorney … Or the Powers that Be?

It’s likely
that you’ve heard of the Power of Attorney (POA). Most people have. We
generally assume it’s a way for someone else to take control of our
assets if we become incapacitated or, as we often see in the movies, we
are ""declared incompetent."" This can be true, but there’s a lot more
to it than that. The POA is a way for you (the principal) to give some
control of your assets or your medical care to another person (the
agent or attorney-in-fact).

You can choose to give someone the
power to deal with a particular aspect of your life or finances or give
them broad reaching powers to make decisions. The POA can be a helpful
tool for many reasons. One reason you should consider a POA is to
prevent problems in the event you become incapacitated. In this case,
you give them the power to act on your behalf concerning medical
decisions if you are unable to act for yourself.

The Health Care
Power of Attorney (HCPOA) or healthcare proxy is one type of POA. The
HCPOA has nothing to do with managing your finances. Instead, it is a
POA for making healthcare decisions. Like the management of your
finances, you need someone you trust to make decisions about your
medical care when you can not. The HCPOA does just that. And, it is
effective immediately upon your incapacity. Your family does not have
to wait for a court proceeding to move forward with important medical
decisions. Your agent can make decisions from the moment you become
unable to do so.

Your agent’s powers can include:

  • The right to refuse or consent to medical treatments
  • The right to access medical records
  • The right to withdraw life sustaining treatments

many states your spouse can make medical decisions for you, but this is
not always the case. If you are unmarried but have a life partner, that
person has no right to make decisions for you. By creating a HCPOA, you
ensure that your loved ones will not have to face additional trauma in
the event you become incapacitated in some way. You may also help to
avoid conflict within your family about what is the best decision.

should supplement your HCPOA with a Living Will, also called a
Healthcare Directive or Directive to Physicians. The Living Will is
similar to a letter of intent. It provides doctors with specific
instructions about your preferences with regard to certain procedures
or treatments. If done properly, your Living Will and HCPOA are legally
binding on the physician. He or she must comply or transfer you to
another doctor who will.

Since nearly 80% of people die in a
hospital setting and doctors are required by law to save a patient’s
life through whatever means necessary, you should consider a legal
means through which your wishes can be known. Your Living Will will
serve as a guide to your wishes. Your agent’s job is to be there to
enforce those wishes and make decisions regarding issues not covered in
your Living Will.

It is fairly easy to set up both a HCPOA and
a Living Will. The documents can be prepared by your attorney. You can
also find information and resources through local senior centers,
clinics and organizations that provide support to those dealing with
chronic or terminal illness. Some agencies offer seminars on healthcare
options and how to complete your legal documents.

When you take
the time to complete this process of planning, you guarantee that your
wishes will be met. You also ensure that your family isn’t faced with
making difficult decisions when they are already facing a traumatic
situation. It is always difficult to admit to our own mortality and
face the inevitable. Yet, by addressing the issue and discussing it, we
alleviate potential crises and show our loved ones how much they mean
to us."

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