If you become incapacitated for any reason at some point in your life, either because of an accident, a serious illness or other medical condition, it can become a legal nightmare for your spouse or close family to then make sudden important decisions about your finances or your ongoing health treatment. The solution is to appoint both a power of attorney and a health care agent to take care of your ongoing life decisions. It is important to consider making arrangements to appoint both a power of attorney and health care agent before you are likely to be unable make decisions about your welfare yourself, even if they will not act until you are actually incapacitated. This article explores the role of a Power of Attorney, a Health Care Proxy and health care agent.
What is a Power of Attorney?
A Power of Attorney (POA) is a legal document which grants someone who you trust and you know who is reliable who can take care of all your financial affairs and other legal issues associated with your estate if you are unable to do so yourself. This person is called the ‘agent’. The agent could be a friend or colleague, a family member or an attorney, but the important determinants are trust in the person’s ability and honesty as well as the decision to appoint a power of attorney before you are actually incapacitated.
There are different categories of Power of Attorney depending on your circumstances and needs. A General Power of Attorney has much wider powers of decision making compared to a Limited Power of Attorney. A Durable Power of Attorney means that the agent appointed can continue to make decisions about your estate after you become unable to do so until you recover or until your death.
A Power of Attorney is best arranged well before you are incapable of deciding what to do yourself if at all possible. You can arrange for the agent to start taking over decisions about your estate such as paying bills, managing your finances and signing legal documents at any time or arrange for the agent to do so only when the time comes for you to hand over power to do so as you become increasingly (or suddenly) incapacitated.
What is a Health Care Proxy?
A Health Care Proxy is like the other side of the coin from a Power of Attorney. It is another legal document which grants an agent called the health care agent the power to make decisions specifically about your health, including ongoing diagnosis and treatment. The health care agent is typically only called upon to make such decisions when you can no longer do so yourself, for example if you go into a coma, become unconscious for some other reason or are suffering from dementia to such an extent that you cannot trust yourself to make reasonable decisions about your treatment and welfare.
Differences between a POA and a Health Care Proxy
A sensible estate plan at some point in your later life would include deciding on both a Power of Attorney and a Health Care Proxy, as each agent makes decisions about different aspects of your later life. The agent who has been nominated by the POA decides on financial and legal affairs while the health care agent decides on your ongoing health care and end of life care.
While the activation of the POA agent to start taking over financial and legal decisions can be at any time determined by you, the health care agent normally only takes over your health care decisions once a doctor has determined that you can no longer do so yourself.
Who can take on the responsibility to agree to act as an agent?
Theoretically, under Massachusetts law, both a POA agent and a health care agent could be any adult older than 18 who has not been determined by a judge as being legally too incompetent to act in such a capacity.
In reality, you would need to make a careful decision about who could act as an agent in either category in advance based on personal knowledge of their character and competence to make important decisions about your welfare. An important point is that there must be a willingness on the part of prospective agents to agree to become such an agent if and when the time comes for the POA or Health Care Proxy to be activated.
POA agents and health care agents are not cast in stone and it is quite legal and reasonable for you to change your mind about either nominee and decide on someone else. Also, if you go through a period of incapacitation but at some point recover (e.g. if you came out of a coma, during which time both the POA agent and health care agent had taken over their allotted responsibilities) you can assume full control of decision making again.
How a POA or Health Care Proxy is arranged
When you decide it is time to decide on a POA or Health Care Proxy and have competent and willing persons in mind, all you need to do is to fill in a POA form and a Health Care Proxy from and have this witnessed in front of two witnesses who have seen you sign either document yourself. This can be arranged by an attorney with estate management experience. If you do decide at any time after this that you wish to change the people nominated as agents, then all you need to do is repeat the documentation procedure, again witnessed by two people and the original POA and Health Care Proxies are automatically revoked.
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