Power of Attorney, Durable Power of Attorney & Health Care Directives: What Is the Difference?

Sun, 25 May 2008 18:58:52 GMT

Every state allows competent adults to grant another person the power to be their “agent”, to act on their behalf. These powers generally fall under three different categories, each having different legal requirements. They are a Power of Attorney, a Durable Power of Attorney, and a Health Care Directive/Proxy.

A power of attorney is a document which allows an agent to act on someone’s behalf, either generally or for a specific and limited purpose. Most Powers of Attorney are created for an agent to act in a fiduciary role: negotiate and sign contracts, apply for government benefits, etc… For example, during a home sale you may grant your real estate agent a power of attorney to negotiate for you. In most states any competent adult can be the agent, and the agent must always act in the best interests of the person they are representing. A Power of Attorney may be cancelled at any time by either party, or by a clause in the document. Most states also require cancellation when the principal becomes incapacitated.

A Durable power of attorney is a separate and more formal document usually required to create a power of attorney when a person may become incapacitated. There are two main differences between a Durable Power of Attorney and a regular Power of Attorney. A Durable Power of Attorney must include language that explicitly states that it takes effect upon the person’s incapacity, or that incapacity does not revoke it. Some states also require a self proving affidavit be attached to the Durable Power of Attorney if the agent is being given control over finances. Most states do not allow a Durable Power of Attorney to make health care decisions.

An Advanced Health Care Directive or a Health Care Proxy allows an agent to make health care decisions. Unlike the Power of Attorney or Durable power of attorney, a Health Care Directive only allows the agent to make decisions about medical care. To avoid a conflict of interest some states do not allow a patient’s doctor to also be their health care proxy. Also, a Health Care Directive is different from a living will. In a living will the person does not delegate decision making power but leaves instructions regarding their medical care if they become incapacitated. A living will may include such provisions as a do not resuscitate order, or an order forbidding food and water.

There have been several uniform acts created regarding these delegations of power in order to help make these documents standardized across state lines. However, states that have adopted a uniform act may still have made changes. For the states that did not adopt a uniform act but created an entirely unique law there may be significant differences in how a person creates one of these documents. Most states though do recognize powers of attorney that were validly created in another state.

How do you know which is the correct document for you? For specific information as to what your state requires, and for help in drafting the appropriate document, you should consult an attorney.

For more information about power of attorney, contact an estate planning attorney today.

Free Trusts Articles

Thu, 26 Nov 2009 03:11:24 GMT

Free Trusts Articles

Free Wills Articles

Thu, 26 Nov 2009 03:11:24 GMT

Free Wills Articles

Free Power of Attorney Articles | Free Power of Attorney Legal Articles

Power of Attorney, Durable Power of Attorney & Health Care Directives: What Is the Difference?

Free Trusts Articles

Free Wills Articles