You’re being responsible. You are addressing a fact of life that many prefer to ignore: there may come a time when you are incapable of making your own decisions (or will need help with certain transactions). Congratulations for recognizing that these are important issues and that it is far better for you to decide who to empower to make important decisions on your behalf, rather than having a court decide.
This article is for those who have already met with their estate planning lawyer or elder care attorney to sign a durable power of attorney and a collection of incapacity planning documents sometimes referred to as advanced directives: health care surrogate designation, living will and health care power of attorney.
What To Do Once a Durable Power of Attorney and Health Care Surrogate Designation have been properly signed
The elder law or estate planning attorney has likely just given you a stack of documents, or perhaps placed them in a very official and important looking binder.
I like to tell my clients that all of these documents are only good if the institutions and facilities recognize and accept them! Some estate planning attorneys are great at drafting advanced directives and powers of attorney, but make it seem as if their effect is immediate and third parties will not give you any trouble. Theoretically, this should be true. A properly drafted, executed and notarized durable power of attorney should be honored by third-parties immediately. Practically, I often find that this is not the case.
Oftentimes, there may be a waiting period while the durable power of attorney or health care surrogate designation is reviewed by an institution’s legal counsel.
What to do with the Durable Power of Attorney After It has been executed?
I wrote another article that explains how an elder law attorney can help if a bank or other institution rejects a power of attorney. But, especially with my clients who are executing these documents in advance of needing to utilize them, I try to counsel my clients on what to do with a durable power of attorney immediately after it is signed in order to avoid confusion and frustration down the line.
The advice is rather simple: After a power of attorney has been properly executed, provide a copy to every entity that you want to honor the document. This includes (but is not limited to): banks, investment brokerages, retirement account holders, mortgage companies, etc… some financial institutions have their own power of attorney forms they will want signed and attached to the power of attorney you signed with your lawyer. Then they will have the POA reviewed by their in-house attorneys to be approved.
But once its approved and in your file, your agent/attorney-in-fact will have no problems making decisions on your behalf down the line.
- As a corollary to this advice: Keep in mind that if you ever decide to withdraw, revoke or change who you named as agent under a POA, you will have to notify the same organizations.
What to do with the Health Care Surrogate Designation After It has been fully signed?
A health care surrogate and health care power of attorney are simply documents that allow you to designate who can make health-care related decisions for you. After a healthcare surrogate designation has been properly signed, my advice is the same as above.
Make sure your physicians and local hospitals have copies of your health care surrogate designation on file in advance. Again, the reasoning is similar – you don’t want your health care surrogate wasting time arguing with medical personnel if an important decision needs to be made. Once the documents are in your file, your health care surrogate will be empowered to assist you in your time of need.
In our office, we create very powerful advanced directives by combining the health care surrogate designation, health care power of attorney and living will in one combined document. This has the very practical effect of letting hospital administrators and physicians know (without having to check multiple documents), who is in charge during a health care crisis, especially if you, the patient, are unresponsive or incapable of making health decisions for yourself.
At the end of the day, the durable power of attorney and health care surrogate designation are two of the most important and powerful documents a lawyer can draft. But they provide limited benefit if they just sit in a home safe or bookshelf. It can be immensely frustrating when institutions put up roadblocks, preventing the effective use of these documents.
By placing a power of attorney or health care advanced directive in the hands of the very organizations that you want to honor them, in advance, you can prevent a huge future headache.
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