CONTINUING POWERS OF ATTORNEY

What Are Powers of Attorney and How Can They Help?
Serious problems can arise, when a person is no longer able to make decisions due to an illnes, or injury, and no one has been authorized make decisions for that person.

 

It may be necessary to go to court to have someone appointed to make decisions.  This can be a complicated and expensive process.  You will not be able to chose who the decision-maker will be.

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When you have the capacity to make decisions (see the definition of mentally incapable), you can sign a document appointing someone to make decisions if and when you become unable.  This person is called the "attorney".  (They do not need to be a lawyer and most are not.)

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Decisions can be divided into two types:

• property (income, expenditures, assets, and debts)

• personal care (where you live, medical care, etc.)

 

The documents authorizing a person (or persons) to make decisions for an incapable person are:

• a Continuing Power of Attorney (Personal Care)

• a Continuing Power of Attorney (Property)

 

What is in a Power of Attorney?
Powers of Attorneys contain several parts:

• who the attorney or attorneys shall be

• how incapacity to make decisions is determined

• what power the attorney has over your property or your person

• instructions on how decisions should be made or, at least, what the grantor's priorities are

 

Sometimes instructions about the use of "heroic" or invasive treatment, if one has a catastrophic disability or a terminal illness.  One can share your priorities about quality of life.  Such instructions are sometimes called a "living will".  they can be included in a Continuing Power of Attorney (Personal Care).

 

Who Should Be Your Decision-Maker?
Chose someone whom you trust:

• to make decisions in your best interests

• to follow your values and priorities

• have the skills and strength to make the hard decisions

• be available in the future when decisions have to be made

 

Be aware of the burden you are placing on the attorney.  Pick an alternative attorney, in case your first choice becomes unable to act.  Consider joint attorneys, who will have to make decisions together.  Consider different different attorneys to make different types of decisions.  But, do not make things too complicated.

 

Do You Need a Powers of Attorneys?
It depends on how important it is to you to select who makes the decision, to give instructions, and to make the process as easy as possible.  It can avoid disputes between the people who care about you, but cannot agree about what should be done. 

 

Fate can intervene at any time (regardless of age or health), and rendering you incapable.

 

However, there are ways to deal with medical and property decisions without a Power of Attorney or a court order:

• next-of-kin can usually make the medical decisions

• certain government income can be paid to certain people in trust for you under the government regulations

• you can transfer property while you still can make decisions or put property in two names jointly

• the Public Guardian and Trustee may make financial decisions if there is no attorney or guardian.

 

But there are risks and limits with these measures. 

 

Powers of Attorney give you the opportunity to give instructions to the decision-maker.  In particular, you can communicate your priorities and values.

 

Your decision could depend on things like:

• who may seek the authority to make decisions for you if you become incapable

• the value and complexity of your finances

• whether you have dependents

• your values about quality of life and preservation of life

 

Do You Have the Capacity to Make a Valid Power of Attorney?
The person (i.e. the grantor) making a Continuing Power of Attorney (Personal Care) must:

• have "... the ability to understand whether the proposed attorney has a genuine concern for the person’s [grantor] welfare ..."

• appreciate "... that the person [grantor] may need to have the proposed attorney make decisions for the person [grantor] ..."

• if there are instructions "... with respect to a decision the attorney is authorized to make", the grantor must have capacity to make that decision

 

If there is an issue about the persons capacity when signing the Power of Attorney, then proof of capacity may be necessary in case validity of the Power of Attorney is challenged in the future.  A formal capacity assessment (or two) may be appropriate.

 

Lawyers should not assess capacity nor should they assist with a Power of Attorney where there is a serious issue of capacity.

 

Do You Need a Lawyer?
These are complicated, emotional, and important matters.  It is worth doing right.  By the time it is needed, you will no longer be able to do anything to help.  Get help from a lawyer.