Why Should I Have a Durable Power of Attorney for Financial and Health Care Matters?

As an elder law and estate planning attorney I am frequently contacted that a family…

As an elder law and estate planning attorney I am frequently contacted that a family member or loved one has had a stroke or other illness or trauma and the person is unable to make informed decisions about health care decisions for themselves. In addition, no one has the authority to handle the person’s financial matters, such as paying bills. The person contacting me typically says, “I’ve been told I need to get a power of attorney from a lawyer.” As I inquire further about the mental capacity of the person who is ill, often the person is incapacitated, at least to the extent they cannot understand the meaning of a power of attorney for financial matters and health care matters.
Regrettably I have to deliver the bad news that it is too late to obtain a power of attorney. A guardianship petition will have to be filed with the probate court and a hearing held by the court to hear the evidence supporting the petition. A guardianship proceeding may not always be a simple proceeding or a pleasant experience. Sometimes there are several court appearances before the hearing is held and a decision is reached. It may also be unpleasant for family members to testify in open court about the 5 Ways To Improve Your Diet incapacity of their loved one, particularly if the loved one is sitting in the court room as the person has a right to be present and hear the testimony presented. The person’s court appointed attorney (in many states the court will appoint an attorney for the alleged incapacitated person to represent their interests and to report to the court if there is a basis for the petition) may determine that the proceeding requires more evidence or live testimony from a physician or other health care providers.
Guardianship proceedings may usually be avoided by a person signing a durable power of attorney for financial matters and a durable power of attorney for health care matters in advance of any illness, or at least before the person loses their mental and physical abilities, whether temporarily or permanently. A durable power of attorney for financial and health care matters should be discussed What Is Healthy Lifestyle with an experienced attorney who will be able to prepare the document or documents meeting the person’s particular needs, assets, family interests and wishes. A form obtained on the internet or from an office supply store may not be appropriate in all cases, or it may not comply with your state’s laws, even though the form may state that it is valid in all states or your state.
A health care power of attorney form distributed by a health care provider or community groups may be appropriate in your situation; however, the form may not be sufficiently flexible to meet your needs.