Becoming incapacitated and unable to make your own decisions about your health care is a frightening thought to many of us. You want someone that you can trust and count on to make the decisions for you if you are unable to do so yourself. It’s important to have this information laid out in a document, so there’s no confusion should anything happen to you. This is why you need a power of attorney.
The Pennsylvania estate planning attorneys at Fellerman & Ciarimboli understand the importance of selecting a power of attorney and creating a living will to ensure your wishes are carried out. We know how difficult these decisions can be and will help you select the person that is trustworthy enough to be your power of attorney.
What is a Power of Attorney?
A power of attorney (POA) is a legal document that gives someone the ability to make legal decisions on someone’s behalf. For example, you are in a coma following a severe car accident. Since you are unable to communicate what you want to happen with your health care, as your named power of attorney, your husband can decide on what should happen to your health care.
In Pennsylvania, there are three main types of POAs:
- Durable Power of Attorney: According to Pennsylvania law, all power of attorneys are durable unless stated otherwise. The person, known as the agent, is given the legal authority to make both financial and health care decisions that are in the best interests of the principal. A durable power of attorney ends at the issuer’s death. Divorce may also make a durable power of attorney invalid.
- Simple or Limited Power of Attorney: The opposite of durable, a limited power of attorney only lasts for a short time and usually ends when the transaction is over. It’s a temporary solution and should have clear instructions of what the agent can do on behalf of the principal. In the case of a limited POA, if the principal becomes incapacitated, the document is no longer valid.
- Springing Power of Attorney: This type of POA becomes active at a specific date or event, usually when the principal becomes incapacitated. The powers “spring” into effect as soon as the event occurs. However, springing power of attorney can be more troublesome than helpful. For example, it could take your doctor weeks to determine whether you are incapable of making your own medical decisions. Without that official certification from the doctor, your agent cannot act on your behalf.
DURABLE HEALTH CARE POWER OF ATTORNEY
One of the most common uses of the POA in Pennsylvania is the durable health care power of attorney. In this case, the agent is responsible for making sure your physician follows your health care wishes as outlined in your living will. A living will is a document that specifies what types of emergency medical procedures and life-saving techniques you do or do not want to be done.
In Pennsylvania, your health care power of attorney cannot be one of the following:
- A physician or health care provider, unless he/she is related to you; or
- An owner, operator, or employee of a health care provider from which you are receiving care unless related to you.
Together, these two documents make up what is known as a health care directive. They will take effect when you cannot make your own health care decisions, such as being unable to understand the nature or consequences of your health care choices or you are unable to communicate your wishes.
WHY YOU NEED A LAWYER TO SET UP POWER OF ATTORNEY
Just a quick search online can bring up results on how to create a power of attorney on your own. But this is not a simple process that you should be doing by yourself. It should be a significant component of your estate planning and only done with an attorney.
At Fellerman & Ciarimboli, our estate planning attorneys have handled many cases where a power of attorney was needed. We will go through the process step by step to make sure you have the right plan in place, and the right agent should anything happen to you. If you need someone to step into that role, our attorneys would gladly help to make sure your decisions are followed through.
If you are considering setting up a power of attorney or creating a living will, Fellerman & Ciarimboli is here to help. Contact our offices in Kingston, Scranton, and Philadelphia today for a free consultation.