Category Archives: Healthcare

Using powers of attorney in California

When people are engaged in estate planning, they often do not think about who will make important decisions on their behalf while they are still living but unable to make decisions due to illness, injury or being incapacitated. Setting up powers of attorney in the event an incapacitating event occurs can help individuals make certain their wishes are followed.

There are three important types of powers of attorney that people should consider having in place. A health care power of attorney give a designated agent the power to make decisions regarding treatment for a person. This is not the same as a living will as it can encompass treatment needs in the event a person becomes incapacitated due to illness or injury.

In addition, people should consider drafting a HIPAA power of attorney. Even when people have power under a health care power of attorney, medical professionals may be unwilling to provide important health information to a designated agent due to medical confidentiality laws. If an agent has a HIPAA power of attorney, this can be avoided.

Finally, a durable power of attorney that specifies who will make financial or business decisions on a person’s behalf can be very important. Durable powers of attorney are flexible and can be used for a single transaction or for a broad variety of financial and business needs.

Powers of attorney can help people ensure they have some control over their health care, financial and business needs in the event they become incapacitated. When people are planning how to handle their assets, they may wish to speak with their estate planning attorney about drafting powers of attorney documents.

Source: Forbes, “Three Powers of Attorney Everyone Needs“, Mark Eghrari, November 14, 2014

What are the responsibilities of an attorney-in-fact?

In California, it is possible for an attorney-in-fact to act on an individual’s behalf pursuant to a durable power of attorney form. An attorney-in-fact is often relied upon to make health care decisions on behalf of the person who executed that form. The person designated as the attorney-in-fact can be any trusted adult such as a friend or an adult child.

The agent designated on a DPA is allowed to engage in any activities stipulated in the agreement whether an individual is competent to do so or not. This means that an agent may invest, buy property or make other financial decisions if so authorized in the document. The terms of the power of attorney become effective when it is signed, but an exception is made for a springing power of attorney which becomes effective at a predetermined date in the future.

The health care power of attorney is only effective when the grantor becomes not competent to make those decisions on his or her own. The authority given to the attorney-in-fact can be as broad or specific as the grantor wants it to be, and often includes the right to consent to or refuse treatment, the right to refuse life-sustaining efforts and the right to obtain access to medical records.

Giving another person a power of attorney over an individual’s affairs may make it easier to ensure that his or her best interests are protected at all times. Prior to creating or executing such a document, it may be a good idea to obtain the advice of an estate planning attorney.

Source: Caregiver, “Durable Powers of Attorney and Revocable Living Trusts“, September 10, 2014