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Power of Attorney: Do You Need One?

JKL Communications, Washington, D.C. and The National Center for the Law and Learning

Adults with learning disabilities or psychiatric disabilities most often are legally competent to handle their own affairs. However, a person with a disability may wish to have some assistance from a parent, sibling, spouse, or friend in handling certain matters. For example, an individual with severe mathematics disorder may wish the help of another person in handling financial affairs. Similarly, an individual with a severe psychiatric disorder may wish assistance, in handling medical treatment decisions, especially if there may be subsequent time periods during which the individual may be deemed not competent to make medical decisions.

Generally, arrangements for this help cannot be handled completely informally. Privacy laws, such as The Health Insurance Portability and Accountability Act of 1996 (HIPAA), may prevent another person from being able to access medical information concerning an individual. HIPAA is a federal law that protects the privacy of an individual’s medical records and health information. Most health insurers, pharmacies, doctors, and other health care providers were required to comply with HIPAA by April 14, 2003.

What is the solution? It may be the durable power of attorney

Many of us are familiar with the use of a durable power of attorney in the context of a family member acting for an elderly parent who is no longer able to manage personal, financial, and/ or medical affairs without assistance. However, the power of attorney is used far more broadly. For example, if a person plans to be outside the United States for several months, he or she may execute a power of attorney designating a trusted person to handle matters that arise during the absence. Similarly, a person with a disability that impacts on functioning in a particular area may find it helpful to execute a power of attorney granting appropriate power to a designated person.

The power of attorney is a document an individual signs and has notarized in order to appoint a trusted family member or friend to act for and in the place of such individual in the areas set forth in the power of attorney. The person appointed is called the attorney-in-fact (as distinct from an attorney-at-law, who must be licensed to practice law). Often, a second person is designated to act as attorney-in-fact, in the event that the first person cannot perform the duties. The areas in which the designated person may act include: personal matters, financial decisions, and medical affairs. There may be one comprehensive power of attorney or there may be a separate power for medical.

The term “durable” means that the power of attorney shall continue in effect even if the maker of the power of attorney subsequently becomes incompetent. This means that the power of attorney will be in effect from the date of execution until the revocation of the power by the maker or the death of the maker. Language to make the power durable must appear in the power of attorney and often is to the effect that the power shall remain in full force and effect despite disability, incompetence, or incapacity, mental or physical, until revocation of the power by the maker or death of the maker. Note that if the person granting the power subsequently becomes incompetent, that incompetence does not mean the person was not competent previously to execute the power of attorney. Competence to execute the power depends upon the ability of the individual to understand what her or she is doing on the day the power was executed.

Financial powers contained in the power of attorney may include, for example: check signing, endorsing and depositing checks, sale of stocks, bonds and real property, representation in income tax matters, retaining counsel, and handling insurance matters.

Medical powers may include, for example: authorize admissions to hospitals, agree to medical care, and authorize withholding medical treatment.

How do you obtain a durable power of attorney? You may ask your attorney to prepare the power of attorney. This may be convenient, especially if you are also having a will prepared. Many states have durable medical power of attorney forms and living will forms available at no charge. Finally, there are software packages for a fee and web sites that offer documents, including a power of attorney, for a fee.

Reprinted with permission from JKL Communications Legal Briefs.
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