Financial vs. Medical Power of Attorney: An Overview
A medical power of attorney authorizes healthcare decisions to be made on your behalf by a designated individual, while a financial power of attorney allows for an authorized individual to oversee your finances if needed. In general, a power of attorney is a document authorizing an individual to make decisions on behalf of another person. The person who gives the authority is called the principal, and the person who has the authority to act for the principal is called the agent, or the attorney-in-fact.You can designate both a financial power of attorney or a medical power of attorney in the event that you’re unable to make those choices yourself.
A medical power of attorney and a financial power of attorney are typically created in separate legal documents. Both are known in legal terms as advance directives. Generally, the law addresses each type of advance directive separately, which limits their authority.
Choosing people you trust to hold your medical and financial powers of attorney gives you more control over your interests and ensures your wishes are followed. Knowing the differences between these two designations will help you decide whether you should appoint the same person to hold both of these directives for you. This article will explore the advance directives known as medical power of attorney and financial power of attorney: what they have in common and what important distinctions can be made between these two legal actions.
- Power of attorney allows one person to give legal authority to another person to act on their behalf.
- A financial power of attorney authorizes an individual to make financial decisions, while a medical power of attorney allows for someone to make medical decisions.
- In some cases, a financial power of attorney can be used for isolated, one-off situations where it is not convenient for you to be present.
- Financial and medical powers of attorney should be separate documents and can be designated to the same person or to two different individuals.
- Generally, both a financial power of attorney and medical power of attorney must be signed before a notary public.
Financial Power of Attorney
A financial power of attorney permits someone you have designated (your agent, or attorney-in-fact) to oversee your finances. Typically, it is used so the person can step in and pay your bills or handle other financial or real estate matters. It can be a designation for a financial professional acting on your behalf, or you may use it to designate a trusted friend or family member to handle matters if or when you cannot physically or mentally do so yourself. In some cases it may also be used for isolated, one-off situations where it is not convenient for you to be present, such as a real estate closing in another city.
How a Financial Power of Attorney Works
A power of attorney can take effect as soon as you sign it, or upon the occurrence of a future event. If the power of attorney is effective immediately, it can be used even if you are not incapacitated. If its powers are “springing,” they don’t go into effect until a future event has occurred. The most common future event is the incapacity of the principal. Incapacity only occurs when the principal is certified by one or more physicians to be either mentally or physically unable to make decisions.
Incapacity can be due to such things as mental illness, Alzheimer’s disease, being in a coma, or being otherwise unable to communicate. If it never becomes necessary, your agent may never use a power of attorney. In many cases, a financial power of attorney may be designated to a professional as part of routine financial management.
Many states have an official financial power of attorney form. Many banks and brokerage firms also have their own power of attorney forms. If your financial concerns include buying or selling real property, a title insurance company, lender or closing agent may require the use of their specific form. So, it is possible you may end up with more than one financial power of attorney form.
Generally, a financial power of attorney must be signed before a notary public. Especially if the sale or purchase of real estate is involved, it may also need to be signed before witnesses. Depending on the state you live in, your agent may also be required to sign to accept the position of agent.
Once a power of attorney has been executed, the original document is given to your agent. The agent can then present it to any third party as evidence of their authority to act for you. For example, they could present it at the bank in order to withdraw money from your bank account or use it to sign papers for you at a real estate closing.
You are legally obligated to a third party who relies on the power of attorney in dealing with your agent.
How Do You Choose a Financial Power of Attorney?
In choosing a financial power of attorney, you will want to weigh whether the person is trustworthy and has enough financial acumen to handle the responsibilities. Thanks to online banking and electronic billing, the person doesn’t necessarily need to be nearby to ensure that your bills are paid promptly. There is no accepted way to amend a power of attorney. If you want to amend a financial power of attorney, the best option is to revoke the existing document and have a new one prepared.
Steps for Establishing a Financial Power of Attorney
Here is a basic outline for the process of establishing a financial power of attorney:
- Evaluate if One Is Necessary: In some cases, a financial power of attorney is not necessary. For example, if an individual’s income and assets are all in their spouse’s names, a financial power of attorney may not be necessary. Likewise, if an individual has a living trust that appoints a person to act as a trustee, then a power of attorney may not be necessary.
- Identify an Agent: One adult will be named the agent in a power of attorney. An attorney, a faith leader, or a family counselor can all help facilitate this decision-making process. A key characteristic of someone who is able to carry out the responsibilities of a power of attorney is being willing to consider other people’s viewpoints.
- Take a Look at the Forms: Certain states have forms that you are required to use, and your financial institution may have a power of attorney form that they prefer you use. Your bank can also serve as a resource for you as you put together a power of attorney. In certain instances, financial institutions may require that their format is used; it’s a good idea to check with any banks or brokers used by your family before crafting the document.
- Notarize the Power of Attorney: Once a power of attorney is written, it generally needs to be notarized. A verbal agreement is not recognized as a legal power of attorney, nor is a casually written letter or note. Once a power of attorney is written and notarized, keep a copy safely stored. Make sure the agent has a copy as well.
- Review the Document Periodically: Because it may be hard to predict when you will need a power of attorney, the document may be created decades before it will be used. For this reason, it is important to review the document periodically.
Example of a Financial Power of Attorney
Roberta is a college professor who is planning a year-long sabbatical in Spain. Since she will remain in the country for a year, she will not be able to execute her financial dealings in Chicago. She appoints her mother to act as her financial power of attorney for her property and investments. Her mother will write checks and sign important documentation related to her investments and property.
In order to create a power of attorney, the individual must be mentally competent. If your parent or other elderly relative becomes incapacitated, it will be too late to authorize power of attorney, and courts will likely need to get involved to appoint an individual to help manage the person’s affairs.
Medical Power of Attorney
A medical power of attorney or healthcare proxy designates an individual to make medical decisions for you when you no longer have the capacity to do so. The person you choose to make health care decisions on your behalf when you cannot is your referred to as your agent. Any competent adult can be your agent, but it’s important to keep in mind that some states enforce these exclusions: your physician or health care provider; an employee of your physician or health care provider (unless the employee is your relative); your residential health care provider (a nursing home for example); an employee of your residential health care provider (unless the employee is your relative). If an individual has any of the aforementioned designations, they cannot act as your agent for the purposes of a medical power of attorney in some states.
This may be needed temporarily (if, for example, you’re under anesthesia and surgery complications arise) or for navigating a longer-term health crisis. The medical power of attorney will only go into effect when you do not have the capacity to make decisions for yourself regarding medical treatment.
How a Medical POA Works
A medical power of attorney will focus only on health-related decisions and will be written according to the exact specifications of the individual making the directive. As such, a medical power of attorney can include provisions for a wide range of medical actions including personal care management, hiring a personal care assistant, deciding on a medical treatment, and making decisions on medical treatments overall.
The Commission on Law and Aging provides the public with a very basic medical power of attorney form that can be used in most states. Some websites also provide basic templates for medical power of attorney.
In most states, a medical power of attorney must be signed and notarized by a notary public before it is a binding legal document. You may also be required to have witnesses present when your medical power of attorney is signed. Neither a healthcare professional nor a lawyer is not necessary to create a medical power of attorney.
You can revoke your medical power of attorney at any time. You can also complete a new medical power of attorney and designate a new agent.
How Do You Choose a Medical Power of Attorney?
Many people have strong feelings about the kind and degree of medical treatment they want. This is why it’s important to think carefully about whom to appoint; the person you choose should be someone you can expect to make decisions similar to those you would make for yourself. This person should be over 18 years old and be someone you trust with whom you can discuss your wishes frankly. You should ask the person you select if they feel able to take on the responsibility. Usually, you appoint only one person as your medical power of attorney, though you can name alternates for situations when that person might not be available.
Kim Trigoboff, an elder law attorney who practices in New York City, suggests that you will want to consider someone’s life experience before asking the person to take on this role. “The person must be able to make difficult choices, even ones that may end medical care,” Trigoboff says. “Some loved ones might not be up to acting as the appointed healthcare agent.” You will also want to consider whether the person is close by and can meet with your doctors should the need arise.
Steps for Establishing a Medical Power of Attorney
- Evaluate if One Is Necessary: In general, if you become incapacitated, doctors will do every type of medical intervention to keep you alive. If you want to have more control over the type (and the extent of) the treatment you receive, then you will need to create a medical power of attorney that designates someone with the legal authority to decide the issue for you.
- Consider Who You Should Choose as an Agent: You should choose someone whose judgment you trust, and someone you are confident can capably fill the role. A good agent will, most importantly, be assertive. There may be times that they need to carry out your will against the wishes of other family members. This person needs to be able to communicate effectively even when faced with resistance.
- Find Medical Power of Attorney Forms: There are many medical power of attorney form templates online. Most states should have forms that you can use on their Department of Human Services website. The American Bar Association also provides a form that is accepted in most states.
- Have the Form Notarized: A medical power of attorney needs to be notarized, which means that you will need to take the form to a notary and sign it in front of the notary. Notaries can be found in banks and at hospitals. Some states may also require you to have witnesses to the signing that attest that you appeared to be in sound mind and signed the document of your own free will.
- Distribute Copies of the Form: There are many people who may need access to a medical power of attorney. These individuals may include your primary care physician and any specialist who treats you regularly; those designated as your medical power of attorneys; close family members or friends; your lawyer; the administrator of your assisted living facility; any hospital or medical clinic where you receive treatment.
Example of a Medical Power of Attorney
Sharon’s mother’s kidneys are failing. She wants to organize her medical and financial documents for her. A medical power of attorney is recommended for everyone, but especially those with a serious, progressive illness. However, it is important that Sharon’s mother is well enough to understand what she is doing when she creates these documents. A medical power of attorney will communicate the treatment wishes of Sharon’s mother in the face of a crisis. Sharon lives in Ohio, so she uses the form that is written into Ohio’s state statutes. Because Sharon wants to address all the nuances of her mom’s health and directives, she gets advice from an attorney after her mother’s medical power of attorney is drafted.
What Are Some Other Terms for Medical Power of Attorney?
A medical power of attorney is also called a healthcare power of attorney (HCPA). This document is different than other legal documents related to end-of-life- healthcare decisions, such as an advance directive, living will, or a do-not-resuscitate (DNR) order.
An advance directive is a living will documenting one’s wishes for end-of-life medical treatment. (An advance directive is sometimes referred to simply as a living will.)
A do-not-resuscitate (DNR) order, also known as a do-not-attempt-resuscitation (DNAR) order, is written by a licensed physician in consultation with a patient or surrogate decision-maker. A DNR indicates whether or not the patient will receive cardiopulmonary resuscitation (CPR) in the setting of cardiac and/or respiratory arrest.
A medical power of attorney is different from a living will, which is a document that spells out what medical care you do and don’t want in the event that you’re unable to communicate those preferences for yourself.
Should You Choose One Person or Two Different People?
It is possible for the medical power of attorney and financial power of attorney to be the same person. Many people do choose this route, appointing one person such as a spouse or adult child to both roles. However, medical and financial powers of attorney can be created and designated for a variety of different reasons. It may sometimes be preferable and more prudent to ask different people to take on these roles.
Selecting a different person for your financial power of attorney and your medical power of attorney may help you choose the best person for each job. If you do select different people for each role, you may want to consider how they might work together in your best interest, should the need arise. Discussing your wishes with them together and also one on one can help ensure your best interests.
Power of Attorney vs. Executor of a Will
Both a power of attorney and an executor of a will are persons that are legally appointed to help another person manage their finances and affairs when they are incapacitated. The difference is that a power of attorney manages someone’s affairs while they are still alive, whereas an executor of a will manages someone’s affairs after they’ve died.
Medical Power of Attorney FAQs
What Does a Medical Power of Attorney Allow You To Do?
A medical power of attorney is a legal document you use to name an agent and give them the authority to make medical decisions for you. An agent can decide the following for you:
- Which doctors or facilities to work with
- What tests to run
- When or if you should have surgery
- What kinds of drug treatments are best for you (if any)
- Comfort and quality of life vs. doing everything possible to extend life
- How aggressively to treat brain damage or disease
- Whether to disconnect life support if you’re in a coma
Is There a Difference Between Power of Attorney and Medical Power of Attorney?
A power of attorney is a general legal term for a document that gives someone you trust the legal authority to act on your behalf. A medical power of attorney specifically gives the agent the authority to make decisions concerning the health care of the principal if the principal becomes unable to make those decisions for themselves.
How Do You Write a Medical Power of Attorney?
The basic requirements for what must be included in a medical power of attorney are similar throughout the country. However, some states require more evidence, such as the signatures of witnesses present during the execution of the document. It’s important that you research your state’s requirements. Many states have a standardized form that residents are encouraged to use. It will include all of the necessary language that makes the power of attorney designation effective.
Can a Doctor Override a Medical Power of Attorney?
No, a doctor cannot override a medical power of attorney. Your doctor is obligated to follow the direction of the person you designate as having medical power of attorney over you.
What Happens If You Don’t Have a Medical Power of Attorney?
The rules in every state are different. However, what usually happens is that the court steps in and appoints someone to take care of your medical decisions for you. This person will be called a conservator. In most cases, the court will appoint a close family member for this role.
The Bottom Line
A power of attorney allows you to make arrangements for your medical and financial decisions in the event you are incapacitated or otherwise incapable of doing so yourself. Creating a medical power of attorney and financial power of attorney is generally regarded as a smart part of every estate plan. As part of your estate planning, you may also consider creating a revocable living trust. A revocable living trust.is a trust document that can be changed over time. This type of trust appoints a trustee to manage and administer the property of the grantor, and it can minimize estate taxes.