When loved ones grow older, it often becomes necessary to establish a power of attorney, health care proxy and/or guardianship to handle their affairs in the event that they become incapacitated.
Power of Attorney
Power of attorney is simply written authorization to handle another person’s affairs, usually financial matters. The process is straightforward: the document must be signed by the principal or grantor (the person granting the power) and the agent (the person to whom the power is granted). Both signatures must be notarized, and some states also require one or more witnesses. The document itself should be prepared by a qualified elder law attorney, as there are many possible provisions, including the appointment of multiple agents or a successor agent and designation of specific powers, such as the power to handle real estate transactions or legal matters.
In the case of handling the affairs of an elderly parent, you will want a durable power of attorney, which means that the power to make decisions continues if the principal becomes disabled or becomes incapacitated. In the state of New York, a power of attorney will be durable unless it states that the power terminates upon the incapacity of the principal. Nevertheless, the document should state that it is a durable power of attorney. The power terminates upon the death of the principal.
Health Care Proxy
A power of attorney authorizes an agent to make financial and legal decisions for the principal, but it does not authorize the agent to make health care decisions for the principal. To accomplish this, the older person will need to appoint a health care proxy. By executing this document, the person designates another to be a health care agent to make medical decisions on his or her behalf. The document can include instructions indicating the person’s wishes regarding medical treatment, including specific treatments that the person does or does not want to receive. The agent is required to make decisions in accordance with the principal’s wishes. The document may also be used to indicate the principal’s wishes regarding organ and/or tissue donations upon his or her death.
If a person becomes incapacitated unexpectedly and documents such as a durable power of attorney are not in place, then a guardianship proceeding may become necessary. This is intended to be a last resort, and alternatives that would meet the needs and protect the interests of the person should be considered first. A guardianship proceeding involves petitioning the court for a determination that a person is unable to manage financial affairs and is incapacitated, meaning unable to understand and appreciate the inability. The court may then appoint a guardian and grant the guardian certain powers, which may be limited depending on the circumstances of the case. Such a proceeding should be handled by an experienced elder law attorney.