Durable Health Care Power of Attorney

A power of attorney is a document in which one person (the principal) names another person (the agent or attorney-in-fact) to legally act. Often, powers of attorney are used to sell property or to transact business when the principal is unavailable i.e. out of the country. Normally, a power of attorney is an at-will document, that means that the principal can revoke the power of attorney at any time, either with or without notice. Additionally, a power of attorney is automatically revoked if the principal becomes incapacitated.

The law recognizes an exception to the revocation upon incapacity, when the power of attorney is designated a durable power of attorney. The durable power of attorney is valid even if the principal becomes incapacitated and therefore can be used, in some instances, improperly. Most states have specific statutes imposing personal liability on anyone who misuses a power of attorney. One narrow use of the durable power of attorney, is a durable power of attorney for health care. In this limited case, the agent is given authority to make health care decisions on the part of an incapacitated person, and nothing else.

If a person is already incapacitated, it is too late to get a durable health care power of attorney. The time to plan for incapacity is when you or your loved one has all their faculties and not wait until it is too late to do anything. It may be too late when your loved one is lying unconscious and medical treatment is delayed while the issue of who has authority to act is decided.

Please call me if you have any questions or if I may assist you with a durable health care power of attorney.