Reasons to Have a Medical Directive and a Power of Attorney

It is important to understand the need for both a Medical Directive and a Power of Attorney. Both are needed to ensure medical decisions, property, and assets are handled properly.

A Medical Directive (MD), sometimes called a Healthcare Directive, is a written document in which you authorize another person, your agent, to make medical decisions on your behalf. It records your healthcare wishes, and allows your agent to execute them if you are unable to because you have become mentally incompetent or physically incapacitated. For example, if you are in a coma and a doctor or other medical professional cannot communicate with you about your health care needs, a MD allows your agent to talk to them.

If you do not have a MD and are in a position where you cannot make healthcare decisions for yourself, a court will appoint a legal guardian who will make them for you. A guardianship is a costly and time-consuming process. An attorney must appear in court for the person who is trying to become the guardian, and another attorney is appointed for you. Once a guardian is appointed, the guardian must file an annual accounting with the court.

Although the guardianship process is intended to protect you, it is not guaranteed that your wishes will be as protected as if you had hand-picked a trusted family member or friend to execute a MD. Your appointed MD agent makes decisions based on what you noted in your MD and what you discussed with him prior to your incompetency or incapacitation. A court appointed guardian does not have this background information

Just because somebody has Power of Attorney (POA) does not mean they can make medical decisions for their principal. However, it is still important to execute a POA to make sure financial affairs, such as medical expenses, are taken care of. Furthermore, if you do not recover from your incapacity and have not given somebody POA, no one else will have the legal right to access your accounts and take care of your financial matters for you.

For example, if you have a trust, but did not have a chance to title all your assets in the name of the trust, the opportunity to fund and use the trust could be lost. If you have appointed a POA, however, he will become a “fail safe” device to preserve the benefit of the trust.

To avoid the potential of costly and unnecessary court proceedings, you should consult with an attorney to ensure that you have a valid Medical Directive and Power of Attorney in place. The Astill Law Office provides quality and comprehensive estate planning. We take pride in the contributions we are able to make to our clients’ estate security. If you have any questions about creating a Power of Attorney or Medical Directive, contact The Astill Law Office at 801-438-8698.

What is a Power of Attorney?

Almost everyone has heard of a Power of Attorney (POA), but not everyone actually understands what a POA is, or why having one is important. A POA is a written document that allows you to legally assign another person to do specific acts for you. This can be especially important if you are getting older, leaving the country, or are otherwise indisposed. This appointed person will act as an “agent” on your behalf, and can do things such as signing your name for you, handling your financial affairs, and taking care of a variety of other functions.

Examples of Function
If you were to become mentally incompetent or physically incapacitated, the person you have given POA could continue to pay your monthly bills on time so your mortgage is current and your gas and electricity are not shut off. An agent with POA may also execute a stock power, handle a tax audit, and maintain a safe-deposit box.

Duration of a POA
You, the “principal,” have the power to revoke the POA at any time. If you never revoke a POA, it will generally expire when you die. Because it expires, it is not a substitute for having a valid will or trust. However, a POA is still a helpful estate planning tool. For example, an agent with POA can put your assets in the name of your trust to make sure the trust is funded.

Requirements of a POA
The requirements for a valid POA are different in many states. There are also different requirements for different types of POAs, such as Durable POAs, POAs for childcare, and Limited POAs. That said, most states typically require a written document signed by the principal, some evidence that the principal was competent, and notarization. Some states also require witnesses to the signature, but even if a witness is not required, it is still important to take measures protecting the powers being granted. That is why it is always recommended you consult an attorney when executing a Power of Attorney.

Dennis Astill has provided high quality legal services in the Salt Lake City area for over 25 years, representing individuals as well as public and private companies. The Astill Law Office focuses on estate planning and business and tax matters. If you have any questions about creating a Power of Attorney or estate planning in general, contact The Astill Law Office at 801-438-8698.