WHAT YOU SHOULD KNOW ABOUT ADVANCED DIRECTIVES, POWERS
OF ATTORNEY, AND LIVING WILLS
Estate Planning doesn’t only deal with what happens after decease. You can also use
estate planning to establish ahead of time how your affairs are to be handled in the unfortunate event that you become incapacitated,
or otherwise unable to care for your own financial and medical matters. In such circumstances, personal preferences can be
respected and honored, through careful planning beforehand. Living Wills and Powers of Attorney can provide that they become
effective when a person is temporarily or permanently unable to handle his or her financial or personal affairs due to illness
or injury. In certain circumstances, you may wish to utilize a Power of Attorney for Financial Matters to overcome logistical
hurdles, which might otherwise prevent you from attending to your affairs at a particular point in time.... for example if
you need to sell or purchase real estate but cannot personally appear to sign the legal paperwork.
In New Hampshire, advanced directives consist of two documents: a Durable Power of Attorney for
Health Care and a Living Will. Both documents help you to preserve your personal autonomy by ensuring that your wishes, values,
and preferences are respected and followed in the event of incapacity. We will consider these documents one at a time.
DURABLE POWER OF ATTORNEY FOR HEALTH CARE
A Durable Power of Attorney for Health Care is used to appoint a person
– called an agent – to make health care decisions for you and to act as your spokesperson when dealing with doctors and hospitals,
in the event that you lack the capacity to make these medical decisions for yourself. You can give your agent specific instructions
or directions about health care preferences which you may have. This includes preferences regarding major life decisions and
“end of life issues” – such as the use or withholding of life-sustaining medical treatment or “life support.”
an individual be incapable of stating his or her wishes at the time such major life decisions must be made, the Health Care
Power of Attorney states those wishes ahead of time. The agent who is appointed in the Durable Power of Attorney for Health
Care must follow those wishes. Some people think that Durable Powers of Attorney for Health Care can only be used to limit
the use of life-prolonging treatment or terminate life support. However, that is not the case! A Durable Power of Attorney
for Health Care can also be used to direct health care providers to administer all available medical treatment, even experimental
procedures. The key is that the Power of Attorney allows you to specify your wishes, whatever they might be.
WILL - ALSO KNOWN AS A "LIVING WILL DECLARATION"
What exactly is a Living Will, and how does it differ from a Durable
Power of Attorney for Health Care? A Durable Power of Attorney for Health Care appoints a particular person (or persons) to
be your agent and spokesman for your health care decisions in the event of your incapacity, and the document gives instructions
to that particular agent. The document expresses your wishes, but it gives them in the form of instructions or directions
that only your agent is authorized to carry out. A Living Will, on the other hand, is like a “declaration to the world” of
certain wishes which a person has regarding end of life issues.
Also, as we discussed above, a Durable Power of Attorney
for Health Care does not necessarily have to be used to limit or terminate life-sustaining treatment. Rather, it can actually
be used to direct that life-sustaining treatment be prolonged, or even that experimental procedures be undertaken. In addition,
a Durable Power of Attorney for Health Care can give instructions regarding other, wide-ranging health care decisions, not
specifically related to end of life issues.
A Living Will, on the other hand, is narrowly focused to deal only with
end of life issues. Moreover, the Living Will expresses one particular point of view on those issues. Signing a Living Will
is a way of declaring that a person does not want his or her death prolonged by artificial means, in certain circumstances
where death is imminent or permanent unconsciousness is inevitable. Obviously, a Living Will should be signed only if it accurately
reflects your feelings and convictions about end of life issues.
Why would someone sign a Living Will in addition
to a Durable Power of Attorney for Health Care? For one, thing, people sometimes like to sign the Living Will Declaration
as a “back up,” in the unfortunate event that their agents, named in the Power of Attorney, are also deceased or incapacitated.
Also, if people feel strongly about their death not being prolonged by what they consider to be artificial means, they may
wish to make those feelings crystal-clear to everyone, and signing a Living Will Declaration is a good way to do that.
Directives can help your loved ones avoid family discord or even a lawsuit over medical care. Without Advanced Directives,
disagreement among medical care providers or family members can result in costly legal battles over proper treatment, not
to mention strife and uncertainty for the family. Your lawyer can help you prepare Advanced Directives that include the specific
instructions you want. Advanced Directives can be changed at any time. If your preferences change with regard to more, or
less, treatment, you can use Advanced Directives to express your wishes. Your Advanced Directives will only be followed if
you become permanently unconscious or otherwise unable to make medical decisions. If you understand your medical condition
and the effect of proposed medical treatment and can communicate in some fashion, it will be unnecessary for your health care
providers to consult your Advanced Directives; they will ask you instead.
|USING A DURABLE POWER OF ATTORNEY FOR FINANCIAL MATTERS
Power of Attorney is a document that authorizes one person, the agent, to act on behalf of another person, the principal.
We just talked about Durable Powers of Attorney for Health Care. Now, we turn to a different kind of Power of Attorney ....
a Power of Attorney for financial matters or other personal matters, other than health care. Powers of Attorney are commonly
used to allow an individual to appoint someone else to handle the sale of a car or house. Powers of Attorney can also be used
to appoint someone else to handle the following kind of routine chores and decisions:
- selecting a place to live
- collecting social security and retirement benefits
- investing money in stocks, bonds and mutual funds
- handling checking and savings accounts
- filing tax returns
A “durable” Power of Attorney means that it
is not affected by any later incapacity, and remains in effect even if you become unable to handle your own affairs. However,
a Durable Power of Attorney terminates at your death. The powers granted to your agent can be broad or limited. You can give
your agent complete authority to manage all your affairs and make all decisions for you. Or, you can limit your agent’s power.
You can specify a termination date and put restrictions on your agent’s authority to act. You retain the power to revoke your
power of attorney at any time while you are competent. You can also discharge one agent and appoint another.
limited power of attorney is useful if you expect to be away from your home or business for an extended period of time. For
example, if business takes you on an overseas assignment, you may wish to give your spouse a power of attorney. Or, if you
are taking a long vacation with your spouse, you can give a power of attorney to an adult child, a trusted friend or family
member, or an advisor.
A durable power of attorney can be used to authorize an agent to handle financial and other
matters. For example, your power of attorney can authorize your agent to invest your money and pay for the support of the
persons that you designate. The power of attorney can authorize your agent to pay your bills, collect interest, dividends
and rent, and to take care of personal matters that arise during your absence.
A durable power of attorney can be invaluable
if you are unable to make decisions as a result of incompetence or unconsciousness. If you are facing a serious operation
or suffering from an incapacitating illness, a durable power of attorney can be prepared to take effect as soon as you sign
it. Or your durable power of attorney can provide that it should become effective only when a doctor certifies that you have
PROTECTION AGAINST UNSCRUPULOUS AGENTS
Agents are required to act in your best interests,
keep accurate records, and treat your property separately from their own. You retain the right to revoke a power of attorney
while you are still able to handle your own affairs. The courts can remove an agent who does not act in your best interests
even after you are incapacitated.
SEEING A LAWYER FOR HELP WITH THESE ISSUES
A visit with a lawyer provides
an opportunity to ask for help in planning for incapacity. Your lawyer can advise you about using Living Wills and appointing
agents and guardians Your lawyer will meet with you in private, allowing you to express your preferences.
No one of
us likes to contemplate the idea of being unable to care for our own affairs. However, it is wise to plan ahead so that your
needs and desires can be followed in the event of an incapacitating illness or injury. Your lawyer can explain the benefits
of advance planning to avoid guardianship should you become incapable of taking care of your personal affairs. If you wish
to appoint an agent, your lawyer can prepare a power of attorney naming someone you trust to handle your affairs if you cannot.
Your lawyer can also prepare Advanced Directives that comply with your wishes, as well as with the detailed requirements of
New Hampshire state statute.
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PLEASE NOTE: This article provides general information. Laws develop
over time and differ from state to state. This article does not provide legal advice about specific legal problems. Most of
all, this article is NOT a substitute for legal advice. Rather, it is intended to whet your appetite for this topic, and give
you some basic information. For more information about your particular situation, you should seek out the advice of an attorney.
Please give Attorney Rutter a call at any time, to schedule an appointment to begin a discussion of YOUR estate planning needs!