The Durable Medical Power of Attorney is much like the Financial
Power of Attorney. The Durable Medical Power of Attorney addresses
your health care instead of your financial affairs. It is generally
used in conjunction with a Living Will and appoints a specific
person to act on your behalf in making decisions with doctors and
nursing homes. Obviously, the person you appoint must be someone you
trust, literally, with your life.
The Durable Medical Power of Attorney is a more important
document than the Living Will and some attorneys now include the
Living Will in the body of the Power of Attorney document. If there
are separate documents, the Power of Attorney should be written to
override the Living Will if there is any ambiguity or disagreement
between the documents. The Power of Attorney will cover all medical
circumstances, even those not imagined at the time you draft the
document.
You may design the document so that when you name a Health Care
Surrogate in the Power of Attorney, that person can make medical
decisions for you only if you become incapacitated and are unable to
make your own decisions. Such a power is called a "springing
power" because it only "springs" into effect when you
can no longer make your own decisions. This is precisely the time
most people want the power to become effective.
Guidelines for the surrogate to follow are spelled out in the
document. This eases the decision-making process during a stressful
time for the surrogate because you set forth your own guidelines and
the surrogate doesn't have to make the difficult decisions.
Decisions pertaining to your health include the right to choose or
refuse medical treatment. It is important that these rights be
preserved in a document such as the Power of Attorney while you have
your health. Those rights could be lost or diminished by a physical
or mental incapacity.
In Arizona, the Medial Power of Attorney must be signed in the
presence of at least one witness or a notary public. If there is
only one witness, that witness may not be the designated surrogate,
be related, be a beneficiary, or be involved in the health care of
the individual. There is no legislated form to use, although there
are basic criteria that must be met. This allows you the flexibility
to write a document that sets forth your specific wishes. The law
permits you to give authority to the surrogate to consent to medical
treatment, surgery, and diagnostic procedures. It also allows them
to provide, withhold or withdraw consent, and to authorize admission
to health care facilities.
By appointing someone to act for you in these matters, you have
given them the general powers of a guardian. Consequently, it
usually will not be necessary to go through the relatively expensive
court process to appoint a guardian in the event of incapacity.
It is also important that the person you name knows your wishes,
values and preferences and has agreed to follow them. Also, talk
with your physician and make sure your physician will honor your
wishes within the boundaries of Arizona law.
A copy of the document should be a part of your medical record. A
copy should also be presented every time you enter the hospital.
Arizona law requires a hospital to establish a file for you in its
Medical Records department if you send them a copy, even if you have
never been to that hospital. Therefore, you might want to send a
copy to any hospital to which an ambulance might take you.
It is suggested that you review, initial and date the document
each year so that the medical community is assured it still sets
forth your wishes. Remember, your attitude toward a situation may
well change over time and you want your current wishes honored.
Durable Financial Power Of
Attorney
When you sign a Durable Power of Attorney, you are giving legal
authority to someone (called your agent or attorney-in-fact) to act
on your behalf. This provides a simple way for someone to manage any
part or all of your financial affairs. As with the Medical Power of
Attorney, appointment of an agent under a Financial Power of
Attorney will usually negate any need for a court process to appoint
a conservator in the event of incapacity. A standard Power of
Attorney ceases to be effective when the individual becomes unable
to make or communicate decisions. The use of the word
"durable" coupled with language in the Durable Power of
Attorney which states it continues in effect if you are
incapacitated, assures that your agent can act when their decisions
are really needed.
Caution must be taken when signing a Durable Power of Attorney to
specify when it becomes effective. Unless otherwise stated in the
document, the agent may act immediately upon signing the document.
He or she may use the document even if you are competent! The use of
the Durable Power of Attorney should be limited to times when you
are incapacitated and this is the way most documents are set up by
this office. Thus, you ensure that you control everything until you
can no longer make decisions. That is precisely what you want when
planning for disability. The power is revoked only if you revoke it,
if a court determines you to be incapacitated, or if you die. It is
recommend that you keep the original document in your possession and
tell the agent where he or she can locate the document if it is
needed.
Keep in mind that even though your agent is required to act in
your best interest, there is no formal supervision of your agent's
actions. It is very important to name someone you trust completely.
All of your property can be made subject to a Durable Power of
Attorney. This could be your home, land, business, stocks, bonds,
mutual funds, bank accounts and other intangible personal property.
Contact all of the holders of these assets and ensure that the
broker, bank, etc., will comply with the terms of your document.
