A Power of Attorney is a legal document that is signed by one person (the “Principal”) granting the authority to another person or persons (“Agent”) to make decisions on the Principal’s behalf. It is important to note that a Power of Attorney document is only in effect during the lifetime of the Principal. At the death of the Principal, this document, and all the powers it confers on the Agents, is null and void. A Power of Attorney may be either durable or springing. A durable power of attorney is in effect as soon as it is signed; a springing power of attorney goes into effect only when the Principal is incapacitated and cannot make decisions for himself/herself.
There are two types of Power of Attorney documents: a financial power of attorney (often called a “general power of attorney”), and a healthcare power of attorney (often called a “living will” or an “advanced directive”). When planning ahead, it is important to have both of these documents, as they will allow you (the Principal) the ability to guide others to make decisions on your behalf when you are not able to make them yourself. While the Agents may be the same person for both your Financial and Healthcare Power of Attorney, they do not need to be the same person. Consider your Agents carefully, and select persons you know will be best suited for the role.
This document grants the authority to enter into financial transactions on behalf of the Principal, including managing bank accounts, investments, buying and selling property, and making gifts. When drafting your Power of Attorney, you have the ability to limit any of these abilities, and to dictate how much control your Agent can have over your finances.
These documents may be combined into one and grants the authority to make healthcare, and end of life decisions on behalf of the Principal. This gives your Agent the ability to make medical decisions on your behalf, including decisions as to surgeries, medical treatment and medications. Most importantly, this document gives your Agent the authority to make end of life decisions, and whether or not you wish to have life sustaining treatments, including feeding tubes, resuscitation and respirators withheld. It is important that you discuss these decisions, and your wishes, with your Agent before signing the Power of Attorney, as these decisions are often controversial and always difficult decisions to make. Be careful when selecting your Agent, as you want to ensure that he or she will be able to honor your wishes, regardless of his or her individual preferences.
An important fact to note is that due to changes in privacy laws, and regulations by the Health Information Portability and Accountability Act of 1996 (“HIPAA”), it is essential that your Healthcare Power of Attorney contains a HIPAA provision which permits hospitals, doctors and other healthcare providers to disclose healthcare information about you to your Agent. Without this language, your doctor is not permitted to disclose healthcare information about you, even to your Agent.
For more information regarding HIPAA privacy laws:
http://www.nhdd.org/ – National Healthcare Decision Day. It has a lot of information and links for advanced planning resources.
http://www.caringinfo.org/files/public/ad/Pennsylvania.pdf – Pamphlet with form living wills and advance medical directives.
aging_cs_hcdec_st_spec_adv_dirs.authcheckdam.pdf – American Bar Association links to state specific advance directive forms.
Living Will– Allegheny County Bar Association website with information on living wills and healthcare powers of attorney.