Durable Power of Attorney for Health

In addition to wills and trusts prepared for a smart estate plan, most clients consider with us whether to prepare and execute powers of attorney to plan for managing their financial affairs and health care needs during their lifetimes as well.

A “power of attorney” is the right you give by law to someone else to do something for you that you otherwise would be the only person allowed to do. Your “attorney-in-fact” or “agent” as they are sometimes called then can do these things within the written scope of the authority that you give them.

Two commonly prepared powers of attorney are for financial matters and for health care. A financial power of attorney can authorize someone for you to open accounts, cash checks, sign contracts or sell real estate, prepare taxes, and so on.  A Power of Attorney for Health Care is part of a two-part New Hampshire Advance Directive that includes a Living Will.  The Living Will allows you to state your choice to end life sustaining treatment when you are certified by doctors to be incurably ill or permanently unconscious.

A Power of Attorney for Health Care, allows someone whom you name to make medical decisions for you if you become temporarily or permanently unable to do so for yourself. The health care power allows your agent to make elective decisions for you, including if you so direct, end of life decisions to end or not start extraordinary life sustaining treatments in consultation with your doctors.   The new law clarifies the meaning of a “Do Not Resucitate (DNR) Order” and enables the agent to apply a DNR Order to a patient’s medical chart that previously the agent under the old law could not necessarily do. If you want to execute a health care power, or make your health care power as broad now as the law currently allows, contact us.

“Powers of attorney give you, not the probate court, the say as to what will and will not be done for you and who’ll make that choice.”

These general powers of attorney for finances and for health care are called “durable powers,” which means very importantly that they survive your becoming incapable of making decisions for yourself. Without a durable power, your becoming incompetent would otherwise end the authority of the person to make financial or medical decisions for you, in which event someone would have to go to the probate court to prove that you were incompetent before managing your finances or making medical decisions for you. A durable power is therefore the estate planning mechanism of choice to avoid an expensive incompetency probate proceeding during your lifetime. Durable powers of attorney are always revocable by you during your competency to choose to revoke it. You can name different agents as well should someone you selected no longer be your choice to make those decisions.

The cost of these documents is low considering the expenses and difficulties they can avoid down the road. Waiting until you are incapacitated is too late, because at that point the law considers that you are incapable of making those choices for yourself. At that point, only a probate court can then declare you incompetent and appoint someone to make financial or health care decisions for you. By making these elections now while you are competent, you choose the people to make the decisions for you, and you choose what kind of decisions you do or do not want made for you. In an incompetency proceeding, the court has to make those decisions for you, with expensive presentations of doctors, friends, and relatives to establish what it is that you would have wanted.

When you contact us about your estate plan, we will discuss with you any questions about these powers of attorney you may have so you can decide if they are right for you. If you go forward with one or both such powers, we’ll execute them along with your last will and testament or any trusts we also prepare for your estate plan. By making those documents through our office, you’ll know that all your elections are properly made, and the document is witnessed and kept safely for you.