Powers Of Attorney

The durable power of attorney, which can provide a substitute decision-maker for all types of property decisions, is the primary method of property management for an incapacitated person. A durable power of attorney is a written authorization for an individual(s), referred to as an agent or attorney-in-fact, to act on behalf of another individual (the principal) for the purposes stated in the document.

In order to be recognized as a durable power of attorney, the document must be prepared and executed according to the formalities specified by state law. Durable powers can be tailored by an attorney to individual needs and circumstances. Generally, the powers are very broad and the individual must take care in deciding whom the agent should be and attorneys can assist the clients by discussing the nature of the document, as well as the individuals who may be called upon to serve as agent.

Individuals can execute a valid durable power of attorney provided they have the mental capacity to delegate power to another person. The capacity required for executing a power of attorney is the ability to understand the nature of the document and the significance of signing it. An individual's mental capacity is not formally determined at the time of execution and the judgment of the attorney and witnesses present is the deciding factor. A long-standing relationship between the client and the attorney is helpful in the event of a challenge to the document's validity. Such challenges are not common but will arise if someone later objects to the right of an agent to act. A power of attorney ceases at the death of the individual.

Medical Power of Attorney

Also known as advance health care directives, a medical power of attorney will either state a person's wishes and instructions regarding future medical treatment in the event of incapacity or appoint someone to act as a proxy or agent to make decisions. Some do both. The nature of the document is determined by state law and the attorney advising in this area will have current knowledge of what the law will permit.

By executing a medical power of attorney, the individual's wishes can be made known with regard to the type of medical care he or she wants. The individual's values can be honored only if they are made known prior to the onset of incapacity and a discussion of those wishes with an attorney can assure that they are expressed correctly in the document. In the absence of a validly executed medical power of attorney, medical decisions for an incapacitated person will be based on commonly assumed values and the patient's wishes may go unfulfilled. A guardian may need to be appointed.