For many, the names Christine Busalacchi, Nancy Cruzan and Terri Schiavo evoke the memory of national news coverage regarding right to die cases – and the heart-wrenching life decisions that family members had to make on their behalf. Contentious legal battles ensued between the parents of Nancy and Christine and the healthcare facilities where they were treated, and also between Terri’s parents and spouse.
These cases demonstrated the importance of making healthcare decisions and prompted a movement for adults everywhere to get their legal documents in order. A Power of Attorney (POA) and an advance directive, or living will, are two documents that could have prevented these three legal disputes.
Drafting a POA involves selecting another person or persons to make potentially life-changing decisions on your behalf. It is only natural for emotion to come into play when one thinks about choosing who that person(s) should be. And if the decision involves choosing between family members or friends, the risk of hurting a loved one’s feelings or causing dissension in the family can be quite real. An experienced estate planning and elder law attorney can help provide guidance and an objective point-of-view.
What is a Power of Attorney?
A Power of Attorney is a legal document where you authorize someone to act on your behalf. Most attorneys recommend that the POAs be durable, which allows the POA to act on your behalf when you are no longer able to do so. It may be necessary for someone else to make decisions on your behalf in scenarios such as:
- Being in a serious car accident;
- Needing risky surgery;
- Experiencing a debilitating stroke; or
- Having a cognitive impairment.
In these and other situations, you need someone you can trust to make appropriate decisions for you.
Anyone 18 years or older should have a POA in place. In fact, an individual should have two POAs: one for financial matters and one for healthcare decisions.
Selecting a Power of Attorney: 5 Guidelines to Consider
In order to keep emotions out of POA decision-making as much as possible, consider these guidelines when choosing your Power of Attorney for Healthcare and Financial decisions:
1. Identify the person(s) you trust completely.
Whether a relative or close friend, you need to have confidence that they have your best interests in mind, will respect your wishes and will carry them out even if they do not personally agree with those wishes. If you have any doubts about their loyalty, you should re-consider your options.
2. Choose someone who can have a serious discussion.
You need to feel comfortable discussing your wishes with your POA candidate. It can be very uncomfortable, and yes, emotional to have these conversations – but you need to make your wishes known. If your POA minimizes the importance of having the discussion or tries to avoid you, they are probably not a good fit for this responsibility.
3. Reflect on education and expertise.
For a Healthcare Power of Attorney, you should consider if your candidate is educated sufficiently for the task of understanding medical procedures, processes and terminology as it would be communicated to them by a doctor or nurse. Likewise, for a Financial Power of Attorney, you will want your candidate to have a basic understanding of managing investments and properties. At the very least, they should know someone who can easily be accessed for guidance.
4. Evaluate decision-making capabilities.
While you may trust someone completely, you also need to know that they can remain calm under pressure and make thoughtful, timely decisions. After all, your life could potentially be in their hands. Ask yourself:
- How does this person follow through on tough decisions?
- Could this person stand up to a dissenting family member who may try to pressure them into changing their mind?
- Does this person have a history of making good decisions regarding their own health and finances?
You may need your POA to pay significant, ongoing expenses for you to stay in a skilled nursing facility. You cannot afford to have someone in this position who exhibits any “red flags” in their ability to make responsible decisions.
5. Remember the importance of proximity.
It is more difficult for a POA who lives in another state to be able to act quickly if needed. They may need to get to a hospital or skilled nursing facility as soon as possible to see you or speak to the medical staff. Distance is an important consideration.
Your confidence is key throughout the process of selecting a Power of Attorney. You need to feel confident in your POA’s ability to understand and communicate your wishes. You also need to know your POA is taking their responsibilities seriously, and that they are honest about their willingness to serve in this capacity.
Just as your chosen POA has the right to step down from their responsibilities, you have the right and responsibility to choose a different POA that will better serve your needs and wishes, if necessary.
Beck Estate Planning & Elder Law Offers Experienced, Confidential Help
It is never too soon for an adult to have Power of Attorney documents drafted. In fact, many of our clients are adult children with an elderly parent who is facing serious health issues. These adults have the difficult task of approaching their loved one about the need to choose a POA before it is too late. Regardless of your situation, Beck & Lenox Estate Planning & Elder Law will accompany you through this important process without judgment or reservation.
Our St. Charles office has been helping clients with their POAs and other estate planning needs for 45 years. Contact our office to schedule a free consultation or give us a call at (636) 946-7899 to get started.
This article is not intended as a substitute for the legal advice of an attorney. Readers should consult with an attorney for matters concerning their estate and estate planning documents.