POWER OF ATTORNEYS AND PIECE OF MIND

General Durable Power of Attorney

A general power of attorney is an important document to have as part of your estate planning. There is sometimes confusion over when this document may be used, and to what extent. I have had people call my office after a family member is deceased wanting to take care of something for their deceased relative such as an insurance or banking matter. They tell me that they have a general power of attorney to handle these matters. Unfortunately, their power of attorney will not help them carry out any transactions, as the general power of attorney was only effective while their family member was alive. Once someone is deceased, the power of attorney may no longer be used. At that point, the executor appointed in the Will of the deceased, or the administrator of the estate of the deceased, as the case may be, is the party that has the authority to handle the assets of the deceased, and carry out any necessary transactions.

Since a general power of attorney only allows the appointed agent to act for the principal while the principal party is alive, you may feel it is unnecessary. You may not be able to think of an instance where your spouse cannot act for themselves whereby it would be necessary for you to sign a document for them, or communicate with a business for them. What if you became temporarily incapacitated due a car accident resulting in a coma? What if due to a stroke or disease, you suffer from dementia. A general power of attorney prepared under the North Carolina Uniform Power of Attorney Act (NCGS Chapter 32) will be deemed durable, unless stated otherwise. This means that the agent’s authority to act is unaffected by subsequent mental incapacity. While you may feel that you do not presently need a general power of attorney, it is too late for you to obtain one after you have already become incapacitated, because you would then lack the capacity to appoint someone your power of attorney. You can see why it is prudent to have a general durable power of attorney as part of your estate planning.

A general power of attorney is typically meant to be broad, and will allow the appointed agent to handle matters such as real estate, bank accounts, insurance, retirement plans, and taxes. However, there is no need to worry about your agent’s authority being too far sweeping. Your power of attorney may be drafted to your needs. It can be as broad as you prefer, or you can include limitations on your agent’s authority based upon your comfort level.

Healthcare Power of Attorney

Regardless of how broad you have your general power of attorney drafted; it would not give authority to your agent to make healthcare decisions on your behalf. You would need a healthcare power of attorney to give someone such authority. While the general power of attorney discussed above can be effective as of the date you sign it, or can be drafted to only go into effect if you became incapacitated (springing power of attorney); the authority given in a healthcare power of attorney only goes into effect when a physician determines that you lack the capacity to make healthcare decisions. This is an important distinction, as you might believe that your healthcare power of attorney gives your agent the right to see your medical records or speak with your physician as soon as it is signed. It does not, until it has been determined that you lack the capacity to make your own healthcare decisions. If you are admitted to a hospital, or for any other reason, would like another party to have access to your medical records and have authority to speak with your physicians, you would need to provide written authorization. Your healthcare provider will be able to provide you with the appropriate HIPAA form to grant such authority.

A Healthcare Power of Attorney may include terms that authorize your agent to withhold or withdraw life‑prolonging measures. Even if you have designated someone to act as your healthcare agent, you do have the ability to make decisions regarding whether you want life-prolonging measures under certain circumstances, and avoid putting your agent in a position to have to make such a decision. The document that is used to make these decisions is commonly known as a Living Will, or more specifically, An Advance Directive for a Natural Death.

Living Will

An Advance Directive for a Natural Death, also known as a Living Will, should not be confused with a DNR (Do Not Resuscitate Order). A Living Will only applies in situations with either an irreversible condition, an unconscious state with a high degree of medical certainly that consciousness will not be regained, or substantial loss of cognitive ability with a high degree of medical certainty that the loss is not reversible, such as advanced dementia or a persistent vegetative state. You may choose that your Living Will apply in all or any of those circumstances. Additionally, these medical conditions would also be coupled with extraordinary life prolonging measures, such as artificial nutrition, hydration, and/or ventilation, for the Living Will to apply.

A DNR order strictly prohibits cardio pulmonary resuscitation measures (CPR) from being taken when in cardiopulmonary arrest (no pulse and not breathing). A physician must sign off on such a directive. However, a DNR alone does not prohibit the use of intubation or mechanical ventilation if the patient has a pulse and/or is breathing. There is a more expansive form in NC that may be used if a patient wants to limit additional procedures beyond resuscitation, called Medical Orders for Scope of Treatment (MOST).

Estate Planning

Do you need to have more than just a Last Will and Testament for your estate planning? Certainly at a minimum, you should have a Will to direct the disposition of your assets, appoint someone to administer your estate, and choose a guardian for minor children, if applicable. However, including a General Durable Power of Attorney, Healthcare Power of Attorney, and Living Will as part of your estate plan can make it easier on your loved ones, and give you some additional piece of mind.