Power of Attorney and
Health Care Directives
Powers of attorney, health care
declarations and living wills are necessary
planning tools. They have specific
requirements for execution and enable you to predetermine financial and
medical decisions in case you suffer a period of incapacity.
Although these concepts are obvious, it's important to use
knowledgeable NJ elder law attorneys to ensure that your best
interests are considered and protected. A power of attorney
is the most important document for elders
to enable someone to manage and protect
their financial resources during your lifetime and
assure the ability to pass assets on to your loved ones upon
your demise..
What's a Power of Attorney (POA)?
 A power of attorney (POA)
is a grant of legal authority over financial decisions from
one person, you, to another person you choose, called your
attorney-in-fact. You need to carefully select those you
trust to act in your best interest and to make financial
decisions on the your behalf. Upon appointment, the
attorney-in-fact serves in a fiduciary capacity with the
same legal rights as you have. Some of these rights include
writing checks from your bank accounts, withdrawing money
from your bank accounts and entering into contracts on your
behalf and legally sheltering your resources. Acting in this role requires that the
attorney-in-fact always act in your best interests.
A Power of Attorney (POA) is a written document in
which you (the "principal") appoint another person or
institution (The "attorney-in-fact" or "agent") to act on
your behalf. The New Jersey power of attorney law which
allows the agent to "conduct banking transactions" is one of
the most liberal and comprehensive laws in the United
States. The legal tools are available to plan ahead - the
client must simply use them. A POA allows you to
authorize another to act as your agent with
respect to real estate transactions, banking transactions,
insurance matters, business matters, estate transactions,
personal relationships, and a host of other matters. This
form also allows you to place restrictions on your
attorney-in-fact's authority. For example, if you wish, you
can authorize your attorney-in-fact to act for you
concerning banking transactions, but not real estate
transactions. Not all powers of
attorney are "durable". If you execute a durable power of
attorney, it will continue to be effective even after you,
the principal, become disabled or incapacitated. For the
power of attorney to be durable, it must contain these
words: "This power of attorney shall not be affected by the
subsequent disability or incapacity or the principal" or
similar words. If a power of attorney does not have these
words, it will stop being effective if and when you, the
principal, become disabled or incapacitated. Will
The Durable Power Of Attorney Allow My Attorney-In-Fact To
Make Health Care Decisions For Me?
New Jersey law allows health care
decisions to be delegated to an agent or attorney-in-fact in
addition to or in place of a health care directive commonly
known as Living Will. Since the power of attorney normally
is intended to address financial, rather than health
matters, it is not typical that a power of attorney is
authorized to withdraw life support systems, to withdraw
nutrition and hydration, or to make decisions about
treatments designed only to maintain your personal comfort.
However, you can appoint someone to carry out your wishes
concerning withholding or removal of life support systems by
appointing a "health care representative" in your Living
Will.
How Do I Create A Durable Power Of Attorney?
A durable power of attorney is created
through a properly drafted and executed document. The Power
of Attorney form must be signed before a notary or attorney. A
durable power of attorney may be effective when you sign it
or only when
you become disabled.
Can I Revoke A Power Of Attorney?
A power of attorney can be revoked at any
time. Also, a durable power of attorney may be revoked if a
guardian is appointed by the Court. The power of attorney
is revoked upon your demise.
Are There Risks?
Occasionally, you may hear of people who
misuse powers of attorney or self deal. A power of attorney
is given, not for the attorney-in-fact to benefit
himself, but to assist the principal. For that reason, it is
important that the attorney-in-fact/power of attorney be someone who is
trustworthy.
An experienced elder law attorney can
build in protection for you in the document and by
informing your appointed power of attorney, in your
presence, exactly what they are and are not authorized to do
on your behalf. In order that you may choose the
authorizations and the powers the document should be carefully drafted by a competent
elder law attorney.
If you feel it's time to
consider the preparation of a durable power of attorney,
contact us at McHugh & Macri.
What's a Living Will/Health Care
Directive?
 A
"Living Will" is a misleading term. It is
better termed a Heath Care Directive ("HCD"), in which you
direct whether you wish to be kept alive by mechanical or
electronic "life support systems" or other life-sustaining
technology. The HCD is designed to be used if the following
conditions are present:
- your condition is terminal, so that
death will result relatively quickly;
- you are "permanently unconscious;"
- you are in a coma
or a permanent vegetative state;
- you have an incurable illness.
Even if your condition is terminal, you can make health
care decisions for yourself and express your wishes.
If you can't, the HCD is intended to speak for you by communicating
your wishes.
The New Jersey living will statute
provides that two physicians must agree whether your
condition is hopeless. If
both physicians do not agree that your condition is
"terminal" or that you are "permanently unconscious," then
medical treatment, including life support systems, will be
provided.
A physician or health care provider who
is unwilling to comply with your HCD must promptly take
all reasonable steps to transfer your care to a physician
or health care provider who is willing to comply with your
wishes. Your physician or other health care
provider, will be provided with a copy of your HCD to
make it part of your medical record.
You can revoke your Living Will at any
time. If you do, make sure that you notify your
physician and health care providers in writing.
The attorneys at
McHugh & Macri are well-versed in health care declarations
and medical power of attorney arrangements – we can answer
your questions. How Do I Create A Living Will?
 The New Jersey living will statute does
not require that you sign a particular form. However, the
statute incorporates a form of Living Will which is
"suggested". It may be better to consult an experienced
elder law attorney since caution must be exercised in
drawing a Living Will in New Jersey. When the law was
enacted, it did not distinguish "nutrition and hydration",
(food and water) from other extraordinary life support
systems. Therefore food and water could be withheld.
Likewise, the document should distinguish that
cardiopulmonary resuscitation (CPR) be withheld as
"extraordinary" if one is comatose, PVS or terminal but in
other situations, it should be administered.
Probably the more important purpose of a
HCD is to appoint someone who is familiar with your
beliefs in these areas as your health care representative.
Since you cannot specify every conceivable health
condition where you wish the HCD to apply, your designated
health care representative can be empowered to make the
decision whether to sustain your life in those
circumstances.
Again, legal counsel by an experienced
elder law attorney can be of aid in this area, especially
to caution against an emotional choice of health care
representative where that appointee may not be willing to
make decisions which may lead to shortening or termination
of life. This is why your spouse may or may not be the
appropriate designee. McHugh & Macri can help with any of your POA needs. |
