If you were suddenly to become so ill that you couldn’t make healthcare decisions for yourself, who would make them on your behalf? This question has taken on a greater urgency than usual during the COVID-19 pandemic, in which people who have no symptoms on one day can be grievously ill less than a week later.
Many people assume that their next of kin, such as a spouse or an adult child, would make important healthcare decisions for them if the need arose. But what if you are in a blended family? Or if a spouse and adult child disagree, who takes priority?
Unfortunately, this is not an uncommon scenario, especially in second or subsequent marriages when the patient’s spouse is not the parent of the patient’s adult children. In that case, the question of who gets to make a decision about a patient’s health can be a thorny one. The consequences may literally be life-and-death; even if not, the dispute can cause a permanent rift in a family.
Any family can have conflicts over healthcare dec… Read More
Any estate planning attorney worth his or her salt will recommend to clients that they execute powers of attorney (POA) for both healthcare issues and finances. Many people tuck these documents in a drawer, feeling secure in the knowledge that they'll be ready to use when needed. With healthcare powers of attorney, that is generally true.
But an unfortunate scenario with financial powers of attorney unfolds often. A person, called the principal, executes a power of attorney allowing another person, her agent, to take certain actions on her behalf should she become incapacitated. When that day arrives, the agent, with POA in hand, goes to the bank or investment firm to transact business on behalf of the principal. Expecting no issues, the agent is shocked to find out that the bank will not honor the POA. Unfortunately, at that point, the principal lacks the legal capacity to execute new POAs that comply with the financial institution's requirements.
W… Read More
If you have an estate plan, it should include a durable power of attorney. A durable power of attorney provides you with protection in the event you are incapacitated during your lifetime and cannot manage your own business and financial matters; the word "durable" simply means that the document remains valid even though you are legally incapacitated. If you are incapacitated, a person you have named as your agent can seamlessly take care of your financial responsibilities and decisions. What are the duties of an agent under a power of attorney?
Ohio law provides clear instructions for agents in Ohio Revised Code section 1337.34. The statute divides duties into two categories: duties that an agent has regardless of the provisions in the power of attorney, and duties that an agent has unless the power of attorney provides otherwise.
Notwithstanding provisions in the power of attorney, an agent who has accepted appointment shall do certai… Read More
Many adults, particularly older adults, have a power of attorney in place so that a loved one can make decisions and act on their behalf in the event they lose the capacity to do so themselves. You might have a power of attorney for financial matters, so that if you became legally incapacitated, the agent you appointed could seamlessly step into shoes and conduct transactions on your behalf, making sure bills are paid, and so forth. You might also have a health care power of attorney, enabling a trusted person to make your health care decisions on your behalf. But can your agent get your health care information?
The intuitive answer would seem to be "yes." Otherwise, how could the person entrusted with making health care decisions on your behalf do so in an informed way? Without access to your health information, he or she might not even know what decisions needed to be made. Until a few years ago, there was a Catch-22 under Ohio law: a health care power of attorney didn't spring into effect until a principal's attending physician declared the principal legally incapacitated. But the agent, also called the attorney in fact, could not get this information until the power o… Read More
Having a power of attorney in place is an essential part of your estate plan. A power of attorney can seamlessly transfer to a person you trust the authority to make decisions or transact business on your behalf as needed. You can have a power of attorney for financial matters or for health care. It can be effective immediately if you choose, or not take effect until you are incapacitated. Essentially, this document gives you control over who will manage your interests if you can't, and spare your family the cumbersome process of seeking guardianship over you if you are legally incapable of making your own decisions. But when should you revoke a power of attorney?
While it's good to have a power of attorney, the person you've chosen to hold that power, known as your agent, may need to change. Perhaps the person you intended to act on your behalf has moved away or is too ill or busy to accept this responsibility. Or, for whatever reason, you may decide that you don't trust the person as you once thought you did, or don't feel like they're the best fit for your needs.
It's important to be honest with yourself about this issue. When you choose an agent, you are entrus… Read More