The future is unpredictable. Regardless of age or physical ability, it is important to prepare for the possibility of incapacity. Without the appropriate legal documents in place, your family may end up in a legal battle so that they can handle your health care and financial matters. Advanced Directives, like a health care proxy, living Will, and Power of Attorney, take effect while you’re alive and grant your agent the authority to handle certain matters for you in the event that you are no longer able to handle those matters on your own.   

Advanced Directives consist of health care directives, such as a health care proxy and a living Will, and financial and legal directives through a Power of Attorney. A Health Care proxy allows you to designate an agent to make health care decisions for you in the event that you are incapacitated. You can appoint a family member, a friend, or someone else that you trust as long as they are 18 or older and are willing to act as your agent. Once you appoint an agent, you are still able to make all of your medical decisions as long as you have the capacity to do so. In addition to designating an agent under a Health Care Proxy, you can specify your wishes regarding medical care and treatment in a Living Will. Your health care proxy will need to follow any wishes that you have expressed in your Living Will, for example, the refusal of certain treatments, your wishes regarding organ donation, or the desire for a do not resuscitate order (DNR).  

A Durable Power of Attorney allows you to appoint an agent to handle financial and legal matters on your behalf. This document takes effect once it is signed and continues until your death unless it is revoked. Your agent is able to act on your behalf regardless of whether you have capacity. It is a very powerful document that grants your agent a lot of authority, so it is important to make sure that you are appointing someone you trust in this role. However, you can choose to limit the authority that you grant to your agent under this document. You can also appoint a monitor who would have the authority to request accountings from your agent to make sure that they are not mishandling your assets. Your agent has a fiduciary duty to you, meaning that they must act in your best interests when making decisions regarding your financial and legal matters.  

It is important to have these documents in place while you are still able to express your wishes because it gives you control over who will handle your medical, legal, and financial matters. It also prevents the need for your family to go through a guardianship proceeding in Court in order to handle your affairs. There may be reasons why you do not want certain family members to have the ability to make decisions for you and having your advanced directives in place will prevent that from happening.  

If you have questions regarding how to set up your advanced directives or what your duties are as someone’s agent, please contact one of our qualified Trust & Estates team members at Lippes Mathias: Jessica M. Peraza (jperaza@lippes.com) or David E. Siegfeld (dsiegfeld@lippes.com) to learn more about how we can help.