Power of attorney. Health care proxy. Guardianship. Conservatorship. You’ve probably heard these terms before, but might not know exactly what they mean, or even more importantly, why they might be even more important as your parents age.
We asked Attorney Andrew Christensen of The Law Offices of Harry C. Christensen of Marblehead, Massachusetts, to help us create an introduction to health care proxy and power of attorney.
8 Facts You Need to Know About Health Care Proxy and Power of Attorney
A health care proxy and power of attorney are two very important legal matters to consider as your parent ages. Both of these documents can authorize you to take care of your parent’s health and financial matters in case your parent ever becomes unable to care for themselves. Making these arrangements in advance of an illness or accident can save you thousands of dollars and major legal headaches.
What Is a Health Care Proxy?
A health care proxy is an advanced directive in which your parent can appoint a person to make health care decisions for them in the future if they lose the ability to make those decisions themselves. This allows your parent to choose a person that they trust to oversee their health care, ensuring their wishes are carried out.
What Is Power of Attorney?
Power of attorney is an advanced directive in which your parent can appoint a person to handle their financial matters. There are many different powers of attorney, including a general power of attorney and a special power of attorney. Today we’ll talk about the durable power of attorney, which is designed to stay in effect even if your parent becomes mentally incompetent due to a condition like Alzheimer’s.
Why You Need a Health Care Proxy and Power of Attorney
A health care proxy and power of attorney give you rights to actions and decisions concerning your parent’s care and finances that you wouldn’t otherwise have.
If your parent were to develop a condition like Alzheimer’s, after a matter of time they would no longer be able to care for themselves or make decisions regarding their health care. This is where a health care proxy becomes important; if your parent has deemed you their health care proxy, then you can step in and make decisions for their care. The same is true if your parent were in a serious accident and were incapacitated. If you have been deemed their health care proxy, that document goes into effect if your parent cannot make decisions regarding their own care, and you then become the decision maker.
But if your parent is incapacitated, there will still be financial matters that need to be taken care of. This is where your power of attorney comes into play. With a power of attorney, you will be able to manage your parent’s finances, sell property, and pay medical bills while they cannot do so themselves.
What Happens if You Don’t Set Them Up in Advance
The problem is that if your parent has not signed a health care proxy and/or power of attorney document, the process of transferring these responsibilities to you will be time-consuming and expensive. You will need to legally file for guardianship and/or conservatorship, which means hiring an attorney, going to court, and making your family’s private business public. This can make an already stressful time even more upsetting, and the process of filing for guardianship and/or conservatorship is much more expensive than it is to simply file health care proxy and power of attorney documents in advance.
When Should a Parent File Health Care Proxy and Power of Attorney Documents?
The short answer? Immediately. It is never too early to execute these documents, especially since you never know what could happen tomorrow. In fact, when your parent files these documents, you may want to consider filing the same documents of your own. Remember, a health care proxy does not go into effect unless you are incapacitated, and a power of attorney document can also be created so that it only takes effect when you’re incapacitated. It is far safer simpler to have these documents on file and to never need them than it is to file for guardianship because your parent never completed these documents.
Can You File DIY Health Care Proxy and Power of Attorney Forms On Your Own?
Companies such as Legal Zoom and even doctor’s offices offer health care proxy forms and templates, but some of the forms are lacking and can be virtually ineffective. They also aren’t state-specific, and some states, including Massachusetts, have very strict laws that a form must accommodate in order to be effective.
You don’t want to rely on a form only to discover that it doesn’t cover what you need. It is a far better option to work with an elder care lawyer so you know that you have filed the correct documents and that they cover everything you might need in an emergency.
Is the Form You Get From the Doctor Enough?
In short, no. Many doctors offer general health care proxy forms. However, these forms are not as comprehensive or detailed as the forms that you work with a lawyer to prepare. A form from a doctor provides a general appointment of health care proxy, but this does not offer you the opportunity to outline your specific wishes.
There’s another risk that you should be aware of. If you have already filed a more formal document with a lawyer, but you then sign a more general form through a doctor’s office, this new form could override your more detailed document and all of the specific requests that you’ve made. It is best to work with a lawyer to ensure that your form will hold up under legal scrutiny and clearly outlines your wishes.
Your Next Steps
If your parent hasn’t yet filed health care proxy and power of attorney forms, then your first step needs to be to consult with an elder law attorney. It’s never too early to start on this very important process, and both you and your parent will feel better having these important documents in place.
Are you ready to take the next step? If you are looking for a lawyer to help you with the process, Andrew G. Christensen specializes in elder law, estate planning, and more. He can help to guide you and your parent through the estate planning process, including filing health care proxy and power of attorney documents. You can contact him via The Law Offices of Harry C. Christensen.