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Powers of Attorney - ©
2001 Jeffrey P. Buhrman
In General - A power of attorney is a document that empowers
another person to act on your behalf. The person whom you empower is
referred to as your agent” or your ‘attorney-in-fact.” You, the author
of the document, are known as the principal.”
The great benefit of a power of attorney is that it enables someone
(often a spouse, close family member or advisor) to make decisions for
you and to carry out actions on your behalf in the event you become
disabled and are unable to make those decisions and undertake those
actions yourself.
If you become disabled and don’t have a power of attorney, then your
spouse, relatives or caregiver may be forced to ask a judge to appoint a
guardian and conservator for you. Going to court can be expensive, time
consuming, and unpleasant if there is a disagreement among your next of
kin. In the end you may not wind up with the guardian and conservator
you would have selected for yourself. A power of attorney allows you to
make that selection now while you are healthy.
Powers of attorney may grant the agent broad or limited authority.
Usually, broad powers are called for, especially if the document is
intended to protect you in case of disability. On occasion, however, the
powers are limited to a specific use or purpose. For example, you may be
selling a vacation home in a distant place. You might give another
person a limited power to carry out the sale. so you personally don’t
have to travel to attend the closing.
A power of attorney may concern financial matters or health-care
matters. or both. Typically, I recommend that clients have a separate
power for financial affairs and another for health-care matters, since
these documents are used in different settings and involve different
people.
Powers of attorney are revocable and can be changed at any time while
the author is competent. Powers of attorney always end with the author’s
death.
Financial Powers of Attorney - A financial power of attorney must
be “durable,” if its purpose is to help you and your family or
caregivers in the event you become disabled. By law, if you become
incompetent after signing a financial power of attorney, the power ends
and is of no effect, unless the document says otherwise. A "durable"
financial power of attorney will continue despite future incapacity.
Typically, a financial power of attorney allows your agent to access
your financial accounts, pay bills, make investments, manage your
retirement account, maintain your home or other real property, sell
assets, file tax returns, hire an attorney, represent you in court, etc.
In addition, you may want to allow your agent to make gifts. Obviously,
this assumes that your agent is trustworthy. Indeed, an untrustworthy
agent can wreak havoc even when he has no gifting power. Among other
things, a gifting power allows your agent to reduce the size of your
estate to save taxes or to enable you to quality for Medicaid, if either
ever is appropriate.
Do not underestimate the strength of a financial power of attorney. Your
agent may sell your property and spend your money without advance notice
to you or approval by you. Always the agent must act in your best
interests and on your behalf. It is illegal for your agent to use your
property for his or her own benefit, or to your detriment. Nevertheless,
such things have happened and your best protection is to select a
trustworthy agent. Legal remedies are costly and frustrating, and a
deceitful agent may have the upper hand, since he has the ability to
possess and control your property.
A financial power of attorney may be written so as to give your agent
immediate authority, or you can withhold authority until a particular
time or event. For example, some powers come into effect only after 2
doctors have certified that the author is incompetent. While doctor
certification may sound like a good idea, and in some cases it is
appropriate, it is a condition that delays and might even undermine the
agent’s authority. It is better in most cases to give your agent
immediate power. Of course, this widens the opportunity for
misadventure. One solution may be to physically separate the document
from the agent. Give the original document to a third person and give
your agent a copy with instructions to retrieve the original only when
needed. The third party then can informally review your situation before
turning over the original financial power of attorney.
Health-Care Powers of Attorney - In Maine, health-care powers of
attorney are more properly called “advance health-care directives.” An
advance health-care directive is a comprehensive legal document that
combines the features of a medical power of attorney and a “living
will.” Oftentimes, a directive also includes an organ donation, the
appointment of a guardian, and certain other directions regarding one’s
personal care.
The use of advance health-care directives was authorized by Maine law in
1995. If your own health-care documents predate 1995, you ought to bring
them up to date.
Health-care agents - In your directive you will want to appoint a
health-care agent: another person to make medical decisions for you, if
ever you are unable to make those decisions for yourself. In many cases,
it is important to specify what your agent is permitted do. This is
especially true, if your agent is not within your family circle.
Health-care providers may be reluctant to fully confide in a non-family
member. When your agent’s powers shall come into being is another
important choice. Generally, I recommend that you do not require proof
of your own incapacity before your agent may act. Such requirements can
delay treatment. Then again, some situations demand special safeguards.
So it is a matter of knowing what is right for you. The person or
persons you select to be your agent ought to be trustworthy, familiar
with your concerns and preferences, and able to act as your advocate.
Also it is advisable that your agent be nearby in case of emergency.
End-of-life decisions - In your health-care directive you may
want to state “end-of-life decisions.” Typical end-of-life decisions are
(i) whether or not you want your life prolonged by artificial means,
(ii) whether or not you want artificial nutrition and hydration, and
(iii) whether or not you want relief from pain, even if it hastens your
death. You should make these decisions based on your personal beliefs.
If appropriate. you may add special directions, such as when your doctor
should write a do-not-resuscitate or no-code order.
Such end-of-life decisions commonly apply only to conditions of
“terminal illness” or “persistent vegetative state” - terms defined by
state law. In appropriate cases, a health-care directive will extend
end-of-life decisions to any situation in which the risks and burdens of
treatment outweigh the expected benefits. There is no legal definition
of such situations. In contrast to the broad sweep of a health-care
directive, statements in a living will, if it predates 1995, usually are
restricted to occasions of terminal illness only.
Your health-care directive may be written so as to prevent your agent
from making end-of-life decisions for you. Instead, all such decisions
would be based solely on the written words of your directive. I often
suggest that if you have confidence in your agent and have talked to her
directly about your wishes, then it is best to give her power to act in
all situations - including those involving end-of-life decisions. This
will allow your agent to actively voice your preferred course of action
in a way a simple piece of paper is unable to do.
DISCLAIMER: This web site is provided
for general information only. It is based on Maine law. The law may
apply differently to your specific situation. Readers should seek
competent legal counsel for solutions to their individual problems and
advice about their individual situation. This web site by itself does not
establish an attorney-client relationship, nor should anything in this
web site be considered legal advice.
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