When most people think of estate planning they typically think wills, trusts and death. However, the actuality is that one of the major focuses of good estate planning is for incapacity during a client’s lifetime. In the previous Part I of this series, I outlined the purpose and benefits of a Financial Power of Attorney. Another document with a very similar purpose is a Medical Power of Attorney.
In general, a power of attorney is an instrument by which one person (the principal) grants to another (the agent) the power to perform certain acts on his or her behalf. A Medical Power of Attorney in particular grants authority to a designated agent to make health care decisions for a principal if that principal is unable to make decisions for themselves.
The agent may only make these decisions if the principal’s attending physician certifies in writing that the principal lacks capacity to make their own health care decisions. The document is effective immediately unless it contains a specific termination date or the princpal revokes the document. The principal can revoke the power of attorney at any time, orally or in writing, which is a major point that I make to my client’s who are concerned about granting these decision making powers to another person. In addition, an agent cannot consent to any of the following items: (i) commitment to a mental institution; (ii) convlusive treatment; (iii) psychosurgery; (iv) abortion or (v) removal of comfort care.
Every person has the potential during their lifetime to be seriously injured, ill, or otherwise unable to make decisions regarding health care. A Medical Power of Attorney is so useful because the agent can choose the person with similar values and that they feel would make the decision they would in that situation. In addition it can minimize the potential for conflict between family members who have different opinions which makes this a key component in estate planning.
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