Durable Power of Attorney for Financial, Business and Medical Matters
Normally, durable power of attorney for financial, business and medical matters are effective immediately upon execution. Sometimes, however, a principal is reluctant to delegate broad powers to anyone while he or she is still competent. He or she may want to execute a “springing” power of attorney, which becomes effective only upon the disability of the principal and not before. A springing power of attorney can cause problems, however, because of the need to prove the disability of the principal before the power of attorney becomes “effective.” No one wants to admit that they have declined to the point of being unable to take care of their medical and financial decisions. Typically, the attorney in fact is a spouse, child or trusted friend who does not want to be the “bad guy” in taking away a principal’s dignity by obtaining the necessary documentation that the principal is now incapacitated.
What is a Durable Medical Power of Attorney?
A medical power of attorney for health care authorizes a trusted person (or persons) to make health care decisions in the event you are unable to make them. Typically, you empower your family to help you and to be in charge of medical decisions when you are unable to represent yourself. A medical power of attorney also allows you to clearly express to the doctors and health care providers your wishes regarding the use of life-sustaining medical procedures when death is imminent.
HIPAA – Medical Privacy
Medical privacy regulations under HIPAA may prevent hospitals, nurses, doctors, insurance companies, etc. from disclosing medical information to relatives and friends. Your durable powers of attorney documents should waive this privacy restriction for those you want told about your medical situation.
Power of attorney is not “just forms.” They are powerful documents which should be customized to meet each person’s estate planning goals and family situation. You should consult with a knowledgeable Elder Law attorney about these matters.
Declaration of Guardian in the Event of Incapacity
Under Missouri law, you may designate in your durable powers of attorney the person(s) you would like to have appointed as your guardian if guardianship is unavoidable. It can also be used to prevent the appointment of certain persons you do not wish to have serve as your guardian. Usually, a set of properly prepared durable power of attorney documents avoids the necessity for a guardianship proceeding. The documents also assure that your family is in control, not a judge or other stranger.
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