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Powers of Attorney, Health Care Powers, and Advance Medical hDirectives

Power of Attorney

For most people, the durable power of attorney 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"
— 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 conservator or
guardian. That court process takes time, costs money, and the judge may
not choose the person you would prefer. In addition, under a
guardianship or conservatorship, your representative may have to seek
court permission to take planning steps that she could implement
immediately under a simple durable power of attorney.

A power of attorney may be limited or general. A limited power of
attorney may give someone the right to sign a deed to property on a day
when you are out of town. Or it may allow someone to sign checks for
you. A general power is comprehensive and gives your attorney-in-fact
all the powers and rights that you have yourself.

A power of attorney may also be either current or "springing." Most
powers of attorney take effect immediately upon their execution, even
if the understanding is that they will not be used until and unless the
grantor becomes incapacitated. However, the document can also be
written so that it does not become effective until such incapacity
occurs. In such cases, it is very important that the standard for
determining incapacity and triggering the power of attorney be clearly
laid out in the document itself. Generally, we recommend our clients
execute "immediate" powers rather than "springing" powers. If you are
concerned that your chosen agent will take advantage of an immediate
power and conduct himself improperly or take advantage of the power
prior to your incapacity, what do you think that person will do while
you are incapacitated? Where such reservations exist, you may be better
off without a power of attorney, where a court can in fact oversee the
handling of your affairs. In most cases, this is not a concern, and the
"immediate" power removes one more hurdle (proving your incapacity)
which could delay the effectiveness of your power of attorney.

Attorneys throughout the country now report that their clients are
experiencing increasing difficulty in getting banks or other financial
institutions to recognize the authority of an agent under a durable
power of attorney. A certain amount of caution on the part of financial
institutions is understandable: When someone steps forward claiming to
represent the account holder, the financial institution wants to verify
that the attorney-in-fact indeed has the authority to act for the
principal. Still, some institutions go overboard, for example requiring
that the attorney-in-fact indemnify them against any loss. Many banks
or other financial institutions have their own standard power of
attorney forms. To avoid problems, you may want to execute such forms
offered by the institutions with which you have accounts. In addition,
you may want to consider execution of a revocable living trust in part
to avoid this sort of problem with powers of attorney.

While you should seriously consider executing a durable power of
attorney, if you do not have someone you trust to appoint it may be
more appropriate to have the probate court looking over the shoulder of
the person who is handling your affairs through a guardianship or
conservatorship. In that case, you may execute a limited durable power
of attorney simply nominating the person you want to serve as your
conservator or guardian. Generally, unless there is some "good cause"
as to why your nomination for the office of guardian or conservator
should not be honored, the Chancery courts in Mississippi will
generally honor your requested appointee if set forth in a document
under oath.

Health Care Power of Attorney and Advance Health Care Directive

A durable power of attorney for health care permits you to designate
someone you choose to make health care decisions for you if you are
unable to do so yourself. An advanced health care directive instructs
your health care provider to withdraw life support if you are
terminally ill or in a vegetative state. A broader medical directive
may include the terms of an advanced health care directive, as well as
providing instructions if you are in a less severe state of health, but
are still unable to direct your health care yourself.

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. As a result of many well-publicized "right to
die" cases, states have made it possible for individuals to give
detailed instructions regarding the kind of care they would like to
receive should they become terminally ill or are in a permanently
unconscious state. These instructions fall under the general category
of "health care decisionmaking." In Mississippi, this takes the form of
an advance healthcare directive, or a durable power of attorney for
health care.

The Durable 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 financial power of attorney, a durable
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 DPA 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 communicate such decisions. By executing a health care
DPA, principals ensure that the instructions that they have given their
agent will be carried out. A health care DPA is especially important to
have if an individual and family members may disagree about treatment.

In general, a health care DPA takes effect only when the principal
requires medical treatment and a physician determines that the
principal is unable to communicate his or her wishes concerning
treatment. If the principal later becomes able to express his or her
own wishes, and is competent to do so, he or she will be listened to
and the health care DPA will have no effect.

Appointing an Agent

Since the agent will have the authority to make medical decisions in
the event the principal is unable to make such decisions for him- or
herself, the agent should be a family member or friend that the
principal trusts to follow his or her instructions. Before executing a
health care proxy, the principal should talk to the person whom he or
she wants to name as the agent about the principal’s wishes concerning
medical decisions, especially life-sustaining treatment.

Once the health care proxy is drawn up, the agent should keep the
original document. The principal should have a copy and the principal’s
physician should keep a copy with that individual’s medical records.

Those interested in drawing up a health care proxy document should
contact an attorney who is skilled and experienced in elder law

Advance Medical Directives

Accompanying a health care proxy should be a medical directive. Such
directives provide the agent with instructions on what type of care the
principal would like. A medical directive can be included in the health
care proxy or it can be a separate document. It may contain directions
to refuse or remove life support in the event the principal is in a
coma or a vegetative state, or it may provide instructions to use all
efforts to keep the principal alive, no matter what the circumstances.
Medical directives can also be broader statements granting general
authority for all medical decisions that are important to the
principal. These broader medical directives give the agent guidance in
less serious situations.

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