Having both a Health Care Power of Attorney and a Financial Power of Attorney in place before it is needed is one of the most important estate planning actions you can take. Taking a pro-active approach to both of these documents means that when the unexpected occurs (and that is exactly how things occur—unexpectedly), the person or persons you have named for these important roles will be able to step in quickly and made decisions.
According to The News Enterprise’s article “Medical guardianship versus power of attorney,” a health care power of attorney is a document that grants another person the power to make medical decisions for you when you no longer have the ability to make those decisions for yourself. It also needs to have HIPAA-compliant language, which will give the person you name the ability to review medical information and discuss protected health information with your health care providers.
A health care power of attorney may also include language for an advance medical directive, which gives instructions for end-of-life decisions. This is often called a “living will,” and is your legal right to reject medical treatment, decisions about feeding tubes, and the number of doctors required to determine the probability of recovery and pain management.
A health care power of attorney does not generally empower another person to make decisions until you are unable to do so. Unlike a general durable power of attorney, which permits another person to make financial or business decisions for you while you are living, as long as you are able to understand your medical situation, you are still in charge of your medical decisions.
A guardianship is completely different from these documents. A guardian may only be appointed if a judge finds that you are wholly or partially disabled in such a way that you cannot manage your own health. The appointment of a guardian is a big deal. Once someone has been appointed your guardian, you do not have any legal right to make decisions for yourself. A court will also appoint a legal fiduciary, who will make your financial decisions.
There are record-keeping requirements with a guardianship that do not exist for a power of attorney. The court-appointed representative is responsible for reporting to the court any actions that they have taken on your behalf. The health care power of attorney document eliminates this requirement.
To have power of attorney documents executed, a person must be capable of understanding what they are signing. This means that someone receiving a diagnosis of dementia needs to have these documents prepared, as soon as they learn that their capacity will diminish in the near future. If the documents are not prepared and executed in a timely fashion, a guardianship proceeding may be the only option.
Reference: The News-Enterprise (Oct. 13, 2019) “Medical guardianship versus power of attorney”