As you begin researching your senior living options, it is also a good time to review (or create, if you have not already done so) two essential legal documents that pertain to senior care and end of life care: your power of attorney forms and your advance directives (also called a living will). In this blog post, we will explain the difference between these documents and the importance of each.
Power of attorney documents
Power of attorney is assigned by a “principal” (you, ) to an “attorney-in-fact,” also known as an “agent” or “proxy,” giving that person legal authority to make decisions should you become incapacitated, mentally or physically. The attorney-in-fact can be a spouse/partner, adult child, relative, or friend, but most important: it should be someone you trust to act in good faith at all times on your behalf. While there are general guidelines for the designation of an agent, specific laws around the creation of a power of attorney do vary from state to state, so always consult with an experienced attorney before you sign a power of attorney designation document. If you reside in two different states throughout the year, or plan to move to a new state, then you should have documents prepared for each state where you live.
When the power of attorney document is created, the principal decides the amount of power that will be granted to the attorney-in-fact (again, a.k.a, the agent). The agent can be given the power to handle only one particular issue (referred to as a specific power of attorney), or he or she can be given authorization to take care of nearly all of the principal’s personal and financial affairs (known as a general power of attorney). The most common specific power of attorney documents include:
- Special power of attorney document, which grants the attorney-in-fact control over only one named task (for example, selling a home or running a business).
- Durable power of attorney document for finances, giving the agent the ability to make financial decisions for the principal. See last week’s blog post on nursing home billing for several examples of the tasks and types of choices this designated agent may have to make for you.
- Durable health care power of attorney document (also called a health care proxy or health care surrogate), which allows the attorney-in-fact to make healthcare-related decisions should the principal become mentally or physically incapacitated. Typically, a physician must determine that you are unable to make your own medical decisions before a health care power of attorney can go into effect.
The attorney-in-fact is required to keep accurate records of all transactions made on behalf of the principal, and he or she is also responsible for understanding which specific types of decisions he or she has the power to make (versus what they do not have the authority to decide).
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It bears repeating that seniors should chose an agent who they trust implicitly to make decisions on their behalf. But regardless of their high confidence level of their chosen agent, the principal should also be sure another trusted individual knows who their chosen attorney-in-fact is and where the power of attorney documents are located.
Advance directives documents (also known as a living will)
Advance directives are a written document that helps guide the healthcare choices made by doctors and caregivers if you should become terminally ill, seriously injured, in a coma, in the final stages of dementia, or near the end of your life.
States have different laws and forms required to create this legal document, and some may require a signature from a witness and/or a notary, but advance directives should always be in writing. You may seek advice from a lawyer if you prefer, but this is typically a document you can create yourself. Visit the National Hospice and Palliative Care Organization website for a free downloadable advance directives form and instructions specific to your state.
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Within the living will document, you may be as general or as specific as you wish, though typically more specificity is helpful to both your physicians and to your family and care decision-makers. As a starting point, consider where you fall on a scale of 1 to 5 where 1 is, “Let me die peacefully without medical intervention” and 5 is, “Never give up on me – try all available medical interventions.”
The Conversation Project and Begin the Conversation have helpful tools to help seniors assess their values and discuss their wishes with family and loved ones. It is also useful to include in your advance directives document your preference on becoming an organ or tissue donor at the end of your life.
Once you finalize your advance directives documents, you should:
- Keep the originals in a safe but easily accessible place
- Give a copy to your physician
- If you live in a continuing care retirement community (CCRC), give a copy to the healthcare facility
- Give a copy to your attorney-in-fact and/or healthcare attorney-in-fact (see power of attorney section above)
- Make note of who has copies of your advance directives should you decide to amend/update them
- Discuss with loved ones and other important people (your attorney, for example) your advance directives and your overall healthcare wishes
- Consider carrying a card in your wallet indicating that you have advance directives, who your healthcare agent is, and where a copy of your document can be found
Be prepared for the unknown
Seniors should review their power of attorney and advance directives documents (as well as their last will and testament!) periodically to be sure they still accurately reflect their wishes. A lawyer should assist if you need to make an update or amendment to your power of attorney. If you need to change or update anything on the advance directives, complete a whole new document and refer to your list of who has a copy so they you may give them an updated version. To be extra sure that there are no problems when the time comes it may be a good idea to share these documents with your healthcare providers today so they can have them on file in advance. By preparing these power of attorney documents and healthcare directives before you need them, and filing them with your medical providers, you can save your loved ones (and yourself) a lot of potential heartache and stress.
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