Guardianships, Health Care Powers of Attorney and Living Will Declarations

A. GUARDIANSHIPS

1. A guardianship is a relationship in which a person is appointed by the Probate Court to manage the personal care, the estate, or both of a minor child or "incompetent" adult.

2. An "incompetent" person includes a person who, by reason of mental or physical disability, is incapable of taking proper care of himself or herself or his or her property. (A guardian may be appointed for a physically disabled person only with that person's consent.)

3. A guardian is restricted by state law in the management of the incompetent person's estate.

B. DURABLE POWER OF ATTORNEY

1. A Durable Power of Attorney is a document in which the principal (the person giving the power) authorizes an agent (called an "attorney-in-fact") to perform certain acts relating to the principal's finances. The attorney-in-fact does not have to be an attorney.

2. Because the Power of Attorney is "durable," the authority of the agent continues even though the principal becomes incompetent.

3. The Power of Attorney can be broad, allowing the agent to perform any act that can be legally delegated, or it can be narrow, giving the agent only the authority to do one specific act.

4. Generally a broad Power of Attorney is executed to allow the agent to handle the principal's day-to-day financial affairs even in the event the principal becomes incompetent. The powers include:

a) managing bank accounts, investments and real estate;

b) investing assets;

c) selling personal property and real estate;

d) dealing with the Social Security Administration and the Internal Revenue Service;

e) settling claims and debts

f) making gifts of assets; and

g) filing tax returns and other documents.

5. A Power of Attorney may also include a provision in which the principal designates a guardian in the event the principal becomes incompetent.

6. The Power of Attorney can be effective immediately, or it can "spring" into effect only when the principal is declared incompetent.

a) A disadvantage of an immediate power is that the agent may exercise the power before the principal intends that it be exercised.

b) A disadvantage of a "springing" power is that the power cannot be used until the principal is determined through some mechanism to be incompetent. This could be either by a court declaration of incompetence or by providing for example that two doctors must sign an affidavit declaring the principal incompetent.

7. A Power of Attorney can be revoked at any time.

8. A properly signed Power of Attorney can help avoid some of the perils of joint property.

C. HEALTH CARE POWER OF ATTORNEY

1. A Health Care Power of Attorney is a written document signed by the principal, which authorizes an attorney-in-fact to make all health care decisions for the principal when the attending physician determines that the principal is incapacitated so as to be unable to make health care decisions for himself or herself.

2. The attorney-in-fact can refuse or withdraw life-sustaining treatment when the principal's attending physician and one other physician determine that:

a) the principal is in a terminal condition:

(1) there can be no recovery and

(2) death is likely to occur within a relatively short time if life sustaining treatment is not administered

b) or, the principal is in a permanently unconscious state:

(1) the principal is irreversibly unaware of himself or herself and his or her environment and

(2) the principal has no capacity to experience pain or suffering.

3. An optional provision of the Health Care Power of Attorney allows the principal to authorize the attorney-in-fact to refuse or withdraw nutrition and hydration. However, the withdrawal of nutrition and hydration will be permitted only if the principal has specifically signed a special section in the Health Care Power of Attorney form which specifically authorizes this authority.

D. LIVING WILL

1. Living Wills, called "Declarations", are used by individuals, called "declarant", who desire to express their wishes regarding their health care if they should be in a terminal condition or a permanently unconscious state.

2. An optional provision in the Declaration allows the declarant to state whether he or she wishes the withdrawal of nutrition and hydration and institution of a "do not resuscitate" order if he or she is in a permanently unconscious state.

3. The declarant can designate which individuals he or she wishes to be notified in the event he or she is in a terminal condition or permanently unconscious state.

4. Once the designated individuals are notified (or the declarant's next of kin if no designation is made), all health care decisions authorized by the Declaration will be given effect.