Power of Attorney and Living Wills: The Decision

Jun 1, 2016

Power of Attorney and Living Wills: The Decision

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As you or your parent reaches the latter stages of your journey, managing decisions based on your health and finances can become a tricky thing to deal with. That is why it is important for seniors to get an early start with estate planning and legal planning.

Most likely you will have two options in dealing with medical and financial decisions during and after the last stage of life. You can opt to have a power of attorney, in which you will choose someone to handle all of your major decisions, or, a living will can be drawn up to document any future decisions. Both have their pros and cons and both should be considered when thinking about the final stage in life.

Power of Attorney 

A power of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter, sometimes against the wishes of the other. In other words, you or your parent will sign over all decision-making abilities to someone else, allowing all financial, medical, and business decisions to be made by the power of attorney. There are also a variety of types of power of attorneys. 

3 Types of Power of Attorney

1. Enduring Power of Attorney

In this case, if the subject becomes incapacitated by either mental health or physical health problems, the Power of Attorney is still able to make decisions on the subject’s behalf. Probably the most controversial form, this grants one person all decision-making power even after the subject’s death.

2. Health Care Power of Attorney

This allows the subject to grant the power for all healthcare decisions, including terminating care and life supports. However, amendments can be made so that they can make all decisions except life support decisions. Oftentimes the health care Power of Attorney is often referred to as a “health care proxy.”

3. Springing Power of Attorney

This only goes into effect if the subject becomes incapacitated. After this occurs, then the person granted will become Power of Attorney. Many couples choose this option so that if one of them becomes incapacitated, the other will assume the decision-making role. However, determining whether the principal is "disabled" enough to initiate this type of representation is a subjective and formal process. Springing powers of attorney are not automatic, and institutions may refuse to work with them.

Why a Power of Attorney is Useful

It’s always good to have a plan, and having a Power of Attorney in place can ease the burden of decision-making. Without any plan in place, if you or your parent becomes incapacitated, this can lead to a mad scramble when making decisions. Also, although we don’t like to admit it, at some point we just won’t be able to do the things we used to be able to do, and that could also include making rational decisions. It’s always good to have a loved one making those decisions.

Downfalls of the Power of Attorney

The most important decision to make is who to give this power to. Giving the wrong person the power to make your decisions can lead to harsh consequences, loss of money, property, and even life are some of the biggest issues that arise when the wrong person is given Power of Attorney.

Living Will 

A living will is very similar to Power of Attorney in that it specifies decisions to be made in case the subject is deceased or incapacitated. It is different because it pertains only to end-of-life medical care and has no effect after the death of the subject.

Why a Living Will is Useful

Without a living will, doctors and loved ones have no idea what the treatment would be preferred. Documenting the wishes of the patient will allow the proper ending to life and will clarify any final needs or wishes. It is also convenient because it can be drafted at any age, and it’s always good to have one drawn up sooner rather than later.

Downfalls of a Living Will

Living Wills can sometimes be too vague which can lead to confusion in making final decisions. Your definition of “heroic measures” or “minimal treatment” may be different than your loved ones, or their doctors. Also, being too specific in the living will may exclude many options that the subject might not be aware of.  Finally, one of the most common downfalls is being unable to produce the living will at the time of need. If the patient becomes incapacitated and the living will is locked up in a safety deposit box somewhere, then the medical facility will assume there was never one created

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Frequently Asked Questions

What's the difference between guardianship and Power of Attorney?

The difference between a guardianship and power of attorney is that for a guardianship the court appoints a guardian when someone is no longer capable of making his or her own decisions. However, a power of attorney is typically appointed by the person themselves. This difference is crucial because there have been many cases where a guardian has wrongly taken advantage of their subject.

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My grandfather has become incapacitated. As his power of attorney, can I sell his house to pay off medical bills?

Most likely yes. In most cases, the Power of Attorney is legally able to sell the property of the representative. This allows them to make major financial, health, and estate decisions should you or your loved one become incapacitated. A reliable guardian can ease the burden of decision-making in your loved one’s latter years.


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