What’s the Big Deal with Powers of Attorney and Health Care Directives?

What is a Power of Attorney?  A Power of Attorney (“POA”) is a tremendously useful legal document that allows you to delegate someone to have authority to act for you.  That person may be called your “agent” or “attorney-in-fact.”  A Power of Attorney may be described as general, limited (or special), springing, and/or immediately-effective, durable, or nondurable.

  • Limited: A limited POA may be used for a specific assignment of authority.  A typical use is to delegate power to take care of a real estate closing for another person.
  • General: A general POA gives your agent broad powers to act for you.  These powers may include authority to take care of banking, real estate, tax, personal property, and investment matters, among other things.
  • Springing: A “springing” POA only comes into effect when a specific event occurs. Typically, one or more physicians are required to make a determination about your capacity to make decisions before your agent can act for you.  Other conditions that trigger your agent’s ability to use the POA are a prolonged disappearance or a court’s determination of incompetency.
  • Immediately-effective: Often, a POA is effective when signed.  Essentially, your agent can act for you whether you are mentally competent to make decisions, or not.
  • Durable: A durable POA allows your agent to act for you even after developing an incapacity for decision-making.
  • Nondurable: A nondurable POA limits the agent’s authority to a specific timeframe.

Caution:  An agent’s power under a POA can be quite powerful, so it is critical to choose a trustworthy agent.  Under a general POA, an agent can typically use your assets to write checks, make investment decisions, buy and sell real estate, sign contracts, file taxes, and alter retirement benefits.  Your agent may not use your assets for his own benefit, but when abuse occurs it is tough to recover misdirected assets.

Health Care Directives:  A health care POA gives an agent the power to make medical decisions for you, if you are unable to make those decisions for yourself.  A living will provides a statement of your wishes for end-of-life decisions.  Your agent has the authority to carry out your wishes as expressed in these documents.  Providing a copy to your agent and facilities that treat you regularly can be helpful for easy access in an emergency situation.

A health care POA should include specific language addressing privacy rules under HIPAA.  Hospitals and other treatment facilities cannot release confidential health records without authority.  With proper authorization, health care providers can share your information between themselves to provide more efficient treatment should you need specialized care.  Further, your HIPAA authorization can provide for release of your health care information to named family members and friends.

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