Incapacity Planning

Most people think of their Last Will & Testament as the most important document that an estate planning attorney could prepare for them.  And yes, a Will is a very important document to have.  But let’s not forget:  a Will does not “speak”  (provide instructions to your loved ones about your estate) until after your death.

In contrast, there are two documents that can have a huge impact on your quality of life and your care during your lifetime:  a Durable Power of Attorney (for financial decisions) and an Advance Directive (for healthcare decisions).  Both documents enable you to delegate to others certain decision-making powers in the ways that you feel are most appropriate, and to the extent that you want to do so. 

If you’d like to learn more about how I can help you or your family to plan ahead for life’s “what ifs”, contact me.

I always  strongly encourage my estate planning clients to complete both of these documents, and a HIPPA authorization form.   Why?  Because so many of the elder law cases I saw while working Atlanta Legal Aid Society (and  many of the queries I get today) are from families who do not have these documents in place, and cannot make key decisions for a loved one (often a parent who is suddenly incapacitated or whom gradually wants and needs more help in making good decisions).  

 For clients who want basic planning for their financial decision-making, I am happy to help them complete the Georgia statutory Power of Attorney.   For clients who have more specific concerns, I can also provide a more customized Power of Attorney to afford even greater protections, or to delegate or reserve their decision-making authority in more specific ways.    A great Power of Attorney should never be the only document in your estate plan, but it can certainly be one of the most helpful and powerful documents to have ready  if and when you need it. -Paul

What is a Durable Power of Attorney?

A durable power of attorney allows you to carry on your financial affairs in the event that you become disabled. Unless you have a properly drafted power of attorney, it may be necessary to apply to a court to have a guardian or conservator appointed to make decisions for you when you are disabled.  This guardianship process is time-consuming emotionally draining, and expensive, often costing thousands of dollars.

There are generally two types of durable powers of attorney: a “present” durable power of attorney in which the power is immediately transferred to your attorney in fact; and a “springing” or future durable power of attorney that only comes into effect upon your subsequent disability as determined by your doctor.  When you appoint another individual to make financial decisions on your behalf, that individual is called an “attorney in fact”. Anyone can be designated, most commonly your spouse or domestic partner, a trusted family member, or friend.  Appointing a power of attorney assures that your wishes are carried out exactly as you want them, allows you to decide who will make decisions for you, and is effective immediately upon subsequent disability.

Who can create a Power of Attorney?

In Georgia, any individual over 18 years of age who is a Georgia resident and who is legally competent can create a power of attorney.  (The question of when a person is legally competent or has  decision-making “capacity” is a complex one.  Since attorneys are not usually physicians or mental health professionals, we must proceed very carefully when working with clients and families on delegating decision-making authority.  In cases when families petition a probate court for guardianship a loved one,  an evaluation by a licensed mental health professional is an integral part of the process.)

Who may act as an agent under a Power of Attorney?

In Georgia, an agent may be anyone who is legally competent and over the age of 18. Often, it is a family member such as a spouse, sibling or a child. While more than one person can be named as an agent, naming two or more individuals to act together can prove inconvenient, especially if a power of attorney must be exercised promptly. It is usually more prudent to name one individual as agent and then another as an alternate.

How does an agent use a power of attorney?

Your agent presents the original power of attorney document to the other party involved in the transaction and signs documents on your behalf.  Your agent signs his or her own name, followed by the words “Attorney in Fact for John Smith”.

What is an Advance Directive for Health Care?

Georgia law allows you to appoint someone you trust – for example, a family member or close friend to decide about medical treatment options if you lose the ability to decide for yourself.  You can do this by using an Advance Directive for Health Care where you designate the person or persons to make such decisions on your behalf.  

(NOTE: In 2007, the Advance Directive for Healthcare replaced the “Durable Power of Attorney for Health Care” and “Living Will”  forms which the State of Georgia previously offered.  Any Living Will or Durable Power of Attorney that you executed before the law changed is still in effect, but it does not hurt to replace these outdated forms with an Advance Directive.)

You can allow your health care agent to decide about all health care or only about certain treatments. You may also give your agent instructions that he or she has to follow. You agent can then make sure that health care professionals follow your wishes and can decide how your wishes apply as your medical condition changes. Hospitals, doctors and other health care providers are guided by your agent’s decisions as if they were your own.

What is a HIPAA Authorization?

Some medical providers have refused to release information, even to spouses and adult children authorized by durable medical powers of attorney, on the grounds that the 1996 Health Insurance Portability and Accountability Act, or HIPAA, prohibits such releases.  In addition to completing and properly executing an Advance Directive for Health Care, you should also sign a HIPAA Authorization Form that allows the release of medical information to your Agents, your Successor Trustees, your family and other people whom you designate.

 

Print Friendly