Power of Attorney
A Power of Attorney (POA) is a written document that allows the Principal (the person having the POA drawn up) to authorize the Agent (also called an “attorney-in-fact” although this person does not have to be an attorney-at-law) or personal representative to act on his or her behalf. It is one of the strongest legal documents that can be given to another person.
A “General” POA gives the Agent very broad powers to act on the principal's behalf. The Agent has powers over all of the assets of the Principal, including but not limited to the right to buy and sell property, access private medical and legal records, use and sell or discard personal property. Essentially, the Agent can do anything with the Principal's property that the Principal could do. Every act performed by the Agent within the authority of the POA is legally binding upon the principal. Since a POA is such a powerful document, only give this power to someone you trust completely.
A “Limited” POA limits your Agent's authority to act only on certain matters and gives the Agent very specific powers. Usually this form of POA is used to authorize the Agent to take a specific action, such as accept an offer to buy the Principal's house, use the Principal's car, or care for the Principal’s children.
Limited Power of Attorney to Act "IN LOCO PARENTIS"
The phrase "in loco parentis" means "in the place of the parent." This type of limited POA grants authority to anyone the parent chooses (such as a babysitter or nanny) to perform a range of functions such as picking up a child from school, buying food and clothing, and consenting to medical treatment of the child in the event of illness or injury. All laws regarding medical regulations clearly provide that a minor may be treated in a true emergency, when the parents cannot be reached. In a non-emergency situation, however, consent is required before treatment will be provided. This limited POA transfers the authority to consent for the child's medical treatment to another individual. A medical facility cannot be designated with that authority; the parent must designate a specific person(s) to have such authority. Also, the individual designated must be an adult. Without this type of limited POA a day care center, school, store, hospital or clinic, fearing legal repercussions, may refuse to follow the directives of the babysitter or other agent, and require the specific authorization of the actual parent. This grant of authority will assist the Agent in the daily business of looking after the child, and can avoid unnecessary delays when caring for the child. It provides legal protection for the facility, as well as for the Agent who might otherwise fear taking action on behalf of the child.
It is important to remember by signing a Power of Attorney, the Principal gives the full force of his or her signature and/or decision-making capacity to another person and whatever that person does under the authority of that Power of Attorney carries the full weight of the law. Without a Power of Attorney, the Principal may be left with no one who can legally represent him or her and maintain his or her finances or business while incapacitated. In these cases, the Court would appoint someone to serve as a guardian of his/her estate while he/she is incapacitated. In these cases, the guardian may be a relative that the Principal would not want or trust to watch after his or her finances and property. The Court could also appoint a professional who will charge a fee to the estate without having any idea about what the Principal's wishes are.
Most Powers of Attorney are considered "immediately effective". The person who is appointed gains this power immediately and can act on that Power of Attorney starting the moment it is signed.
A “Durable” POA is not affected by a person’s incapacity, unlike with a non-durable POA in which the Agent’s power to act for the Principal (signor of the Power of Attorney) automatically stops if the Principal becomes incapacitated. Through a Durable Power of Attorney, an Agent may continue to act on the Principal's behalf even after stroke, dementia or other incapacitating illness or accident. The Agent can use the Principal's funds to pay bills, can contract for nursing home services for the Principal's benefit and can make basic health care decisions (unless otherwise stated in the Principal’s Health Care Power of Attorney).
An aging parent may give a durable Power of Attorney to their trusted adult child so that, in the event the parent is disabled or incapacitated, the child can act on the parent's behalf and carry on routine matters. In many instances, this arrangement is far better than making the child the joint owner of the parent's bank accounts and other property and assets.
A "Springing" POA only becomes effective upon the happening of a specified event (which could be the Principal’s incapacitation). It is very important that the terms of the Springing Power of Attorney be laid out clearly, including the method for determination of the incapacity (or other triggering event) and the person who decides whether or not the Principal is incapacitated (or that the triggering event has occurred).
A Power of Attorney is a powerful legal document that gives someone else right to act as though they are you and the law will treat you as if you committed the actions yourself. Before signing any documents consult with an attorney at Haas McNeil & Associates, P.A. to understand the risks and benefits, and to ensure the documents are properly prepared.
Health Care Power of Attorney
A Health Care Power of Attorney is a legal document which states your choices about medical treatment and/or allows you to name someone else to make decisions about your medical treatment if you are unable to make these decisions for yourself. Through the use of a Health Care Power of Attorney, you can make legally valid decisions that inform your doctors, friends and family about your wishes in future medical care.
Unlike the Living Will, which only applies when you have been diagnosed as having a terminal and incurable illness, being in a persistent vegetative state, or having advanced dementia, a Health Care Power of Attorney applies in any case where you are unable to make medical decisions, such as when you’re temporarily incapacitated or seriously ill. Having both a Living Will and a Health Care Power of Attorney can assist your Agent in carrying out your wishes.
A Health Care Power of Attorney may include within it a Living Will and/or an Advanced Instruction for Mental Health Treatment.
Living Will (Declaration Of A Desire For A Natural Death)
A Living Will is a legal document which informs your doctors of your wishes regarding life-sustaining procedures when you are not able to communicate them yourself. Often a Living Will is used to let health care providers know that you do not want your life prolonged by extraordinary measures in the event you have been diagnosed as having a terminal and incurable illness, as being in a persistent vegetative state, or as having advanced dementia.
In North Carolina, for a Living Will to become effective it must be determined by medical professionals that you do not have the capacity to make your own health care decisions. In addition, your doctor and at least one other doctor must determine that you either have a terminal and incurable condition, are in a persistent vegetative state, or have advanced dementia. They must also have a copy of your Living Will.
A Living Will executed in North Carolina may not be valid in another state since Living Will laws differ in virtually every state that has such laws. Even with a Living Will, it is very important for you to discuss your wishes with your family to be sure they understand what you would want in the event can no longer speak for yourself. If your doctor or health care facility is unsure of what action to take, or if your family members cannot agree, the courts will decide in a process that can take years to resolve.
Advanced Instruction for Mental Health Treatment
An Advanced Instruction for Mental Health Treatment allows you to give instructions and preferences regarding mental health treatment. "Mental health treatment" is defined by law as the process of providing for the physical, emotional, psychological, and social needs of the principal (patient) for the principal's mental illness. "Mental health treatment" includes, but is not limited to, electroconvulsive treatment, treatment of mental illness with psychotropic medication, and admission to and retention in a facility for care or treatment of mental illness. The advanced instruction may include:
• consent to, or refusal of, mental health treatment;
• names and telephone numbers of individuals to be contacted in case of a mental health crisis;
• situations that may cause the principal to experience a mental health crisis;
• responses that may assist the principal to remain in the principal's home during a mental health crisis;
• the types of assistance that may help stabilize the principal if it becomes necessary to enter a facility; and
• medications that the principal is taking or has taken in the past and the effects of those medications.
The Advanced Instruction for Mental Health Treatment is designed for people who have mental illnesses such as paranoia, schizophrenia, or a bi-polar disorder. It is not designed for people who may be experiencing mental health problems associated with aging, such as Alzheimer's disease or dementia. People who are concerned with these types of mental health issues may only need to utilize a Health Care Power of Attorney (which does not include an Advanced Instruction for Mental Health Treatment) to express their preferences for mental health care treatment.
Medical Directive
A Medical Directive allows you to specifically state, while you are mentally alert and competent, which situations you do or do not wish certain medical interventions performed. It is not possible to foresee all the situations that may occur, but stating your wishes for some situations is a helpful guide for those who will be making decisions about your care. The power to execute a Medical Directive derives from your virtually unlimited right as a mentally alert and competent adult to refuse medical treatment. A Medical Directive is not a legal document, but it is evidence of decisions you made while you were competent for use in times when you no longer have the capacity to make decisions for yourself, and this information regarding how you feel about certain medical procedures can assist those who are trying to help you toward the end of your life.
If you wish your Medical Directive to have the force of a legal document, you must make it a part of the section regarding “special provisions and limitations” in your Health Care Power of Attorney.