What You Should Know About Guardianship, Living Wills, and Power of Attorney for Older People and Their Families
Adults who become incapable of caring for themselves, their property or their dependents may have a -guardian appointed for them. However, guardianship can be avoided through tile use of living wills and powers of attorney. In such circumstances, personal preference can be respected without the need for court appointed guardians.Living wills and powers of attorneys can provide that they become effective when a person is temporally or permanently unable to handle his or her financial or personal affair, due to illness or injury
This pamphlet explains how your lawyer can help you plan ahead by using living wills and powers of attorney. It also discusses guardianship procedures and the advantage of using powers of attorney to avoid them.
Some people think that living wills can only be used to limit the use of life-prolonging treatment However, these documents can also be used to direct health care providers to administer all available medical treatment, even experimental procedures.
A living wills call help your loved ones avoid family discord or even a lawsuit over medical care The law ordinarily requires health care providers to follow the directives of a valid living will, even if they conflict with medical advice or the wishes of family members. Without a living will, disagreement among medical care providers or family members can result in costly legal battles over proper treatment.
Your lawyer can help you prepare a living will that includes the specific instructions you want. For example, you will want to state your preferences regarding particular treatments such as dialysis, chemotherapy, radiation, surgery and the use of respirators, feeding tubes or other methods of life support
A living will can be changed at any time. If your preferences changed with regard to more, or less, treatment, you can use a new living will to express your wishes
Your living will is only followed if you become permanently unconscious or otherwise unable to make medical decisions. If you understand your medical condition and the effect of proposed medical treatment, it will be unnecessary for your health care providers to consult your living will; they will ask you instead.
- selecting a place to live
- collecting social security and retirement benefits
- investing money in stocks, bonds and mutual funds
- handling checking and saving’s accounts
- filing tax returns
- authorizing medical treatment (in certain states)
A power of attorney can be limited so that it expires if you become incapacitated. Alternatively, it can be “durable” and not be affected by any later incapacity. A durable power of attorney remains in effect even if you become unable to handle your own affairs. However, both limited and durable powers of attorney terminate at your death.
The powers granted to your agent can be broad or limited. You can give your agent complete authority to manage all your affairs and make all decisions for you. Or, you can limit your agent’s power. You can specify a termination date and put restrictions on your agents authority to act. You retain the power to revoke your power of attorney at any time while you are competent. You can also discharge one agent and appoint another.
A limited power of attorney is useful if you expect to be away from your home or business for an extended period of’ time. For example, if business takes you on an overseas assignment, you may wish to give your spouse a power of attorney. Or, if you are taking a long vacation with your spouse, you can give a power of attorney to an adult child, a trusted friend, an advisor, or your bank.
A durable power of attorney call be used to authorize an agent to handle financial and other matters. For example, your power of attorney can authorize your agent to invest your money and pay for the support of the persons that you designate. The power of attorney can authorize your agent to pay your bills, collect interest, dividends, and rent, and to take care of personal matters that arise during your absence.
A durable power of attorney can be invaluable if you are unable to make decisions as a result of incompetence or unconsciousness. If you are facing a serious operation or suffering from an incapacitating illness, a durable power of attorney can be prepared to take effect as soon as you sign it. Or your durable power of attorney can provide that it should become effective only when a doctor certifies that you have become incapacitated.
In certain states, a power of attorney may be used to designate another to make health decisions. In other places, this may be done with a health care proxy or living will.
Your lawyer can prepare a power of attorney that meets the requirements of your state. Your lawyer can also help you select a trusted family member, friend or advisor under your power of attorney. Your lawyer may recommend that you select two agents one to administer your medical care and another to manage your financial affairs.
Guardianship is ordinarily not necessary for an incapacitated person who has appointed an agent under a durable power of attorney. However, if an agent has not been appointed, your friends or family may start legal proceedings to have a guardian appointed. If you disagree, you can fight the proceedings for guardianship. This may be appropriate if you can’t decide who to select as your agent or what to specify in a living will. Guardianship may also be preferred if you fear that your family members will try to force their interests, rather than yours, upon your agent or doctor. However, guardianships are more expensive than powers of attorney because of’ court fees, bond premiums, and the fees of experts who will testify during the legal proceedings.