Planning for Incapacity FAQs

What is a Durable Power of Attorney?

A Durable Power of Attorney is a document that authorizes another individual to handle your financial affairs. Without a Durable Power of Attorney, it may be necessary for one of your loved ones (such as your spouse or adult child) to petition a court to be appointed guardian to make decisions for you when you are incapacitated.  This guardianship process is time consuming, expensive, often costing thousands of dollars and it can be emotionally draining for your family.

When you appoint another individual to make financial decisions on your behalf, that individual is called an agent or attorney-in-fact. Most people choose their spouse or domestic partner, a trusted family member, or friend.

When you execute a durable power of attorney, you also need to decide when the power will become effective. A present Durable Power of Attorney immediately grants the power to your attorney-in-fact. In contrast, a springing or future Durable Power of Attorney becomes effective only after your subsequent disability has been determined by your doctor. The choice between these two types of durable powers of attorney will depend primarily upon who is being appointed as your attorney-in-fact and the extent to which you are trust the attorney-in-fact and are willing to grant such authority at the time of execution of the durable power of attorney.

Who can sign a Durable Power of Attorney?

Generally, any individual over the age of majority and who is legally competent can sign a Durable Power of Attorney and name an attorney-in-fact.

Who may act as an agent under 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 friend or a professional with an outstanding reputation for honesty would be ideal.

What is a Medical Power of Attorney?

The law allows you to appoint someone to decide about medical treatment options if you lose the ability to decide for yourself.  You can do this by signing a Medical Power of Attorney where you designate the person and his or her successors 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 sure that health care professionals follow your wishes and can decide how your wishes apply as your medical condition changes. Hospitals, doctors and other health care providers must follow your agent’s decisions as if they were your own.

What is a Living Will?

A Directive to Physicians (Living Will) informs others of your desire not to be placed on life-support in the event you are diagnosed as being terminally ill. This is extremely important because you will have expressed your wishes in advance and if this ever arises, your family members will not be required to make this difficult decision.

What is a HIPAA Authorization?

Some medical providers have refused to release information, even to spouses and adult children authorized by the Healthcare Power of Attorney on the grounds that the 1996 Health Insurance Portability and Accountability Act, or HIPAA, prohibits such releases.  Therefore, as part of your incapacity planning, you should sign a HIPAA authorization form that allows the release of medical information to your agents in your Medical Power of Attorney.