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The 'ABC's


If you are separated or divorced, you should take all steps necessary to protect yourself. The following deals with the basics of managing your property, person, and health care and the documents you will need.

General Durable Power of Attorney

A General Durable Power Of Attorney is a document whereby one person grants to another the right to manage his or her assets under certain circumstances. In other words, the holder of the power has the right to deal with another’s assets as if he owned them
- with a few exceptions. The primary exception is that the power holder must act in the principal’s best interest. This means that absent a specific grant of power the Power of Attorney cannot be used to make gifts. Any person who is considering entering a long term care facility or is concerned about his or her ability to continue managing his or her assets should have a power of attorney in place. In addition, it is important that the power of attorney be "durable" (i.e. have language that causes the power to survive incompetence) and it should most likely provide for "gifting" by the power holder under certain circumstances. If gifting language is not in the power of attorney, asset transfers for the benefit of the spouse or others may be impossible, even if desirable for planning.


Some people are uncomfortable in giving an agent immediate authority over their assets - and rightfully so. That’s why the use of the "springing" durable power of attorney makes sense. A "springing" durable power of attorney means that the document does not become effective until some time after its execution -- typically upon the happening of some event such as the incapacity or incompetence of the principal. Thus a springing durable power of attorney is not effective until the principal becomes incompetent, and it can be revoked by the principal at any time prior to his incompetence.


Living Wills


A Living will - sometimes called declaration of desire for a natural death --- is a written statement whereby an individual gives directions to his physician and family as to what should happen near the end of his or her life with respect to the withholding of or providing of medical treatment. A living will only deals with circumstances under which the individual is terminal or in a persistent vegetative state.


Health Care Powers of Attorney


A newer, more flexible, and perhaps less understood planning document for health care is the durable Health Care Power of Attorney (HCPOA). While General Powers of Attorney have been in use for some time, the HCPOA is a relatively recent innovation that arose in the wake of the "right to die" debate. Following the Supreme Court's decision in the Nancy Cruzan case, attention was drawn to the inflexibility of most state statutes with respect to advanced health care planning. For example, the typical living will statutes enacted by most states do not deal with consent to or refusal of treatment for most medical conditions. This issue becomes of critical importance in the case of an incompetent or unconscious person who requires medical treatment. In response to this inflexibility, the Health Care Power of Attorney developed and is now available in all states.


A Power of Attorney is an instrument whereby a person, referred to as the "principal," appoints someone else as his agent in a particular matter or class of matters. The agent is referred to as an "attorney-in-fact". In the case of a HCPOA, the matters upon which the agent acts are health care decisions. When a HCPOA is in effect, the attorney-in-fact is placed in the shoes of the principal with respect to all health care decisions. Health care providers are bound to honor these decisions as if they were the decision of the principal himself.


In some states, the language of the HCPOA is set out in the statute and, except as provided in the statute, should not be altered. The advantages of the statutory form are two fold: First it provides more certainty for medical professionals who might otherwise feel compelled to question the validity of the HCPOA or the agent's authority thereunder. Second, it makes the HCPOA more accessible to a much wider segment of the public as it can be disseminated from various sources and can be executed without the assistance of an attorney.


There are two common questions asked about HCPOA’s: (1) Who should have a HCPOA? and (2) Will a HCPOA replace my living will? As to the first question, everyone should have a HCPOA. Most statutory form HCPOA’s are "springing" durable powers of attorney - meaning that the document does not become effective until some time after its execution, typically upon the happening of some event. In the case of a HCPOA, that event is the incapacity of the principal. Thus, the HCPOA is not effective until the principal becomes incompetent, and it can be revoked by the principal at any time prior to his or her incompetence. Consequently, there is less risk in the execution of a HCPOA.


The second question is more complicated. Although it is possible to replace a living will with a HCPOA, it may not be desirable to do so. If a HCPOA is used as a substitute for a living will, the principal transfers difficult and often stressful end-of-life decisions from himself to his agent. While this may ease the burden on the principal, it may prove a very difficult task for the agent. Often a person should have both a living will and a HCPOA. This leaves decisions regarding termination of life sustaining treatment in the hands of the principal, where it belongs, and allows the agent to make other health care decisions as necessary.


Guardianship and Conservatorship


If the durable power of attorney and health care documents are not in existence, the family may be required to approach the probate or surrogate court. Guardianship and Conservatorship are the processes by which the probate court appoints an individual to be responsible for the physical and financial decisions of an incompetent person. The Guardian is the person responsible for the physical and medical decisions, while the Conservator manages the incompetent person's assets. The Guardian and Conservator may be either the same person or two different persons.


A guardian and conservator may be appointed for an individual only if that person is physically or mentally incapable of managing his or her own affairs. If an interested party (primarily relatives, creditors or friends ) believes an individual is physically or mentally incapable of managing his or her affairs, that person may petition the Probate Court of the residence of the person in question for a determination of incapacity and appointment of a guardian or conservator. This petition will be served upon the individual and if he is not represented by an attorney, a guardian ad litem will be appointed to represent him or her.


The person who files the petition must be able to present proof of the individual's incapacity. This is done in the form of doctor reports and visitor reports. If the court finds the individual to be incapable of managing his personal or financial decisions, the court will appoint a guardian, conservator or both - all depending on what is needed by the individual.


Since the laws of each state are different and because all situations are not the same, be sure to consult with trained professionals in your locale.


© 1997, Flying Solo®.

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