When most people think about an estate plan, they first think about their will, and that truly is the main document. What that document does is it says what happens to your things after you're gone. If you have children, it has guardianship provisions, and if they're under 18, it also will usually have a trustee provision. But that isn't the only document you should be looking at in your estate plan.

Powers of Attorney

When you are still alive, we use powers of attorney and there are two main types. There's a financial and there's healthcare power of attorney. So both of these documents can be effective when something happens to you and you become incapacitated (or you can also choose to have them be legally enforceable even when you are alive and fully cognizant).

But let's say you're in a car accident and you're in a coma, and you can't speak for yourself, that financial power of attorney that will help somebody manage your financial affairs and the healthcare power of attorney will also nominate somebody to take care of your big medical decisions. It's going to have a list of the different medical powers that you're going to grant to them. It tends to be a more in-depth document than just a checklist of powers. And in fact, your state probably has something called a health care directive on its website. This is however where I suggest that you definitely talk to an attorney. They're healthcare decisions that are going to be made when you're unable to speak for yourself. And you want to make sure your document is tailored to you and that your decisions are as specific as possible.

What's in a Healthcare Power of Attorney?

Many clients will ask me what's in a healthcare power of attorney and what kind of decisions are in there?

  • Identify the agents who are going to speak for you and we want to have their name and their address and the telephone number so that as the doctors need to find them to speak to them, they know how to contact them.
  • Access to your medical records. I still recommend a standalone HIPAA authorization to go with this document. But your healthcare power of attorney will also have that provision.
  • Decisions regarding long-term or hospice care. So if it looks like your injury is a long-term disability you're not going to be able to come back for a while. Do we want to put you in hospice care or long-term facility?
  • Whether to keep you in your home if you're sick. So some people prefer to stay in their house. Others will prefer to be in a medical facility.
  • A decision that's a little controversial among married spouses, and that's whether or not you give your healthcare agent the power to commit you to a psychiatric facility. We often see these kinds of stories in the news when celebrities are committed or have a mental breakdown, but it is effective as well for just everyday folks who are married, and do you need to have a psychiatric provision in yours.
  • The ability of your agent to hire health care aides for you. So if you need extra help at home, and you're just not in a place to do that yourself, your healthcare agent can employ them for your benefit.
  • Situations where you do or do not want pain relief, what kind of medication you want. So let's say you're a recovering addict, and you know that you don't want certain kinds of drugs in your system. These are the kinds of things you want to specify in your healthcare power of attorney.
  • Power to do an autopsy and what to do with your remains whether to be buried or cremated. Now you should know that the burial versus cremation is also normally going to be in your will itself, but that power to have an autopsy done can be very important if there were any questions about your care when you are in hospital.
  • The healthcare power of attorney also has an important provision for your agent which allows them to be reimbursed for what they do on your behalf. You don't want them to have to pay for medical records and pay to transport you and do all these things. But not get reimbursed.
  • It can also be used in any state, which is why you don't necessarily want a state form. So if you're in one state and move to another, a state-specific form may not be honored in the other state. However, a generalized healthcare power of attorney is usually portable across state lines.

In case you are worried, you should remember that you can revoke this at any time. So if you appoint your spouse, for example, and you go through a divorce, you don't have to keep them as your healthcare power of attorney. You can revoke it and do a new one with somebody else you'd like to make those decisions for you.

Signing Your Healthcare Power of Attorney

When it comes time to sign your healthcare power of attorney. It's signed like a will. So we usually want to have two witnesses in the notary. Now, this isn't always required depending on what state you're in. But I think it's important to make sure that we have evidence that there were witnesses and the notary there. So any doctor that's looking at it relies upon it knowing that it was signed correctly.

We also want you to keep the original with your important documents. So with your will with your healthcare power of attorney living well, if you have one, your financial power of attorney, we want all these things to be together. And you should also have copies available to you as part of your attorneys portal. So if you're working with an attorney, they should have an online portal for you where you're able to access PDF copies of these records. So if something happens to you, your healthcare agent can access that portal and be able to get the PDF and get it to the doctor. So we don't waste time trying to find originals.

5 Common Mistakes I See With Healthcare Powers of Attorney

There's five main mistakes I see when people bring me a healthcare power of attorney that wasn't properly created.

  1. People who weren't being clear about their wishes in their healthcare power of attorney. They're given a general document, they didn't really pay attention to the powers. They just signed it.
  2. Not talking to your agent about your medical wishes. Just because you do the healthcare power of attorney doesn't mean you shouldn't be talking to your agent so they have some context about your medical decision-making process and what kind of decisions you'd like them to make if they have to.
  3. Not choosing what powers you want to grant to your agent. You can choose all the powers, you can choose a few powers, but make sure you are comfortable with the powers you're giving your agent.
  4. Not giving copies of this to medical providers, your doctors, and your major medical providers who work with the clinics should all have a copy of this in their file so that you don't have to go running around and find one if something happens to you.
  5. The most common mistake I see, is someone who didn't sign it correctly. Maybe they forgot to get it notarized. They didn't have witnesses. Maybe they signed in the wrong place.

So you want to make sure you don't fall into one of these five mistakes, which is why you want to work with an attorney on something like this as opposed to trying to do it yourself.

Next Steps

Now if you don't have a healthcare power of attorney, or it's time to update yours, let's set up a Legal Strategy Session phone call. We can go through your healthcare power of attorney or if you don't have one, how to create one. And while we're doing that, let's also look at the rest of the documents in your estate plan to make sure you've got the right documents for you and your family.

Andrew Ayers
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I work with business and estate planning clients to craft legal solutions to protect their legacies.