by Sheryll Bonilla, Esq.
You’re a parent and you want to take care of things so that your children inherit your property after you die and make it as smooth and easy for them as possible.
The Advance Directive and Durable General Power of Attorney are two basic documents that are very helpful to have and save families expenses and delays when using them.
Advance Directive
Families are sometimes caught off guard when sudden illness or accident overtakes a loved one, who loses the ability to authorize treatment he needs.
If the incapacitated person executed (signed in front of a notary) an Advance Directive, then the family can present it to the doctors and hospital to show they have the authority to make medical decisions for him.
If the person does not have an Advance Directive, the family may likely have to start a guardianship case in court to gain the power to make medical decisions. A conservatorship may also be needed.
A guardianship is an authority over the incapacitated person, while a conservatorship is the authority to manage the incapacitated person’s finances.
Guardianships are handled in Family Court. Conservatorships and joint conservatorship – guardianship is done in the Probate Court.
The Family Court website has forms for the family to file the case themselves. The Probate Court does not have templates so the family often has to hire a lawyer to take care of the case for them.
Besides identifying the agent (the person authorized to act for the principal / incapacitated person, the AD lists the powers the agent has, which usually includes the ability to discuss treatment with health care providers, view medical and billing records, apply for assistance, and consent to or refuse treatment.
The Advance Directive is for healthcare treatment, including admission to hospice or nursing homes, and end-of-life decisions.
These decisions include whether to withhold or provide food, water, and pain relief medicine, even if the medication speeds up the person’s death.
Organ or body donation is also an end-of-life decision, but there’s a second consideration.
The incapacitated person has to have indicated this on her or his driver’s license or state ID, or registered with Legacy of Life (either national or state).
If the incapacitated person did not do either, the guardian nor agent under the Advance Directive cannot authorize organ or body donation.
Power of Attorney
For non-medical matters, a Power of Attorney is needed if a person becomes incapacitated.
This is often called a “Durable General Power of Attorney” because the authority granted continues after the person becomes incapacitated.
For most persons executing a Power of Attorney, the principal chooses to start the agent’s authority when the principal becomes incapacitated.
Sometimes, though, the principal allows the agent to have authority as soon as the document is signed.
For example, a grandparent who has a very hard time getting around may authorize his grandchild – who lives with him and is his caregiver – to do all his banking, etc., for him.
Having the Power of Attorney avoids the need for a court to appoint a conservator when he becomes incapacitated.
The principal can choose which types of tasks he confers authority; usually, the POA is general for all areas.
This article is for informational purposes only and is not to be constructed as offering legal advice. Please consult an attorney for your individual situation. The author is not responsible for a reader’s reliance on the information contained here.
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