As an original member of ECMC's outreach team for "The Conversation Project", we addressed the topic that many are reluctant to talk about; Continuing Care and End of Life Issues. Not just the legal documents, but what it means to be responsible for your loved ones care in life and in death.

We often hear about the "big three" planning tools: Durable Power of Attorney, Health Care Proxy, and Last Will.

Leaving Last Will out, I believe that the caregivers Big THREE are:

Durable Power of Attorney (POA) - financial and legal issues

Health Care Proxy (HCP) - health care issues

Medical Orders for Life-Sustaining Treatment (MOLST) - end of life issues

These are not just legal documents; they are essential tools not only for the person that you care for but also for you and your other family members. 

In the next few months, we will take an in-depth look at these areas and offer suggestions on how to utilize each.


The Power Of Attorney

Note that each state may have different regulations for a POA 

Definition of individuals named in the Power of Attorney (POA)

Principal - The individual that the POA is being prepared to protect (your loved one)

Agent - The person or persons chosen to act on behalf of the principal (you)

Although we can never predict the future, tragedy can strike at any time.  I have been involved with many families whose loved one has suffered injuries from an accident or illness which has left them unable to look after their financial and legal obligations which, unfortunately, don't end when tragedy strikes.  It is for this reason that a Power of Attorney should be created prior to accident and illness occurring.  I have witnessed many unfortunate situations, involving young people who are brain injured accident victims and do not have a POA in place.  Anyone who has financial obligations should consider a POA, regardless of age or health.


When a POA is in place, financial fulfillment of obligations would automatically transfer to the person or persons named as the agent in the POA, either temporarily or permanently


Obtaining a POA

Although you do not need a lawyer as "fill in the blanks" forms are readily available online, you should consider help from an attorney who is well-versed in this area of law. The attorneys who are expert in this area of law are Estate Planning and/or Elder Law Attorneys. Getting in done correctly will save a lot of headaches in the event that it is invoked.  The attorney can craft the appropriate POA for your loved, one granting broad legal authority or limited authority depending on your needs and choices.  There are several types of POA's in NY state; Durable Power of Attorney is probably the most common. Rely on your attorney to discuss which is best for your situation.

The kinds of legal authority that can be granted to an agent in a POA are:

 Buy and Sell Real Estate

 Manage Property

 Conduct Banking Transactions / Pay Bills

 Invest your money, or not

 Make legal claims and conduct litigation

 Attend to tax and retirement matters

 Make gifts on your behalf


The duties of a person(s) named as agent in a POA

A POA is only active while a person is living, but unable to make decisions concerning legal and financial obligations. If you are named in the POA document, you are known as the "agent" for that person. You should choose a trusted family member(s), a proven friend, or a professional with an outstanding reputation for honesty.   Remember, signing a Power of Attorney that grants broad authority to an Agent is very much like signing a blank check.  Certainly, you should never give a Power of Attorney to someone you do not trust fully.  Do not allow anyone to force you into signing a Power of Attorney.  Be extra cautious if the situation is particularly stressful!  The Agent is obligated to act in the best interests of the Principal and to avoid any "self-dealing".   Self-dealing is acting to further the selfish interests of the Agent, rather than the best interest of the Principal.

An Agent appointed in a Power of Attorney is a fiduciary, with strict standards of honesty, loyalty, and candor to the Principal. An Agent must safeguard the Principal's property, and keep it separate from the Agent's personal property.  Money should be kept in a separate bank account for the benefit of the Principal. Agents must also keep accurate financial records of their activities, and provide complete and periodic accountings for all money and property coming into their possession. Make clear to your Agent that you want accurate records of all transactions completed for you, and to give you periodic accountings. You can also direct your Agent to provide an accounting to a third party, a member of your family or trusted friend in the event you are unable to review the accounting yourself. 


If the agent named in the POA does not follow the instructions

You may revoke your Power of Attorney at any time.  You should inform your Agent, in writing, that you are revoking the Power of Attorney.  At this time you will request the return of all copies of your Power of Attorney.  You should notify your bank or other financial institution where your agent has used the Power of Attorney that it has been revoked.  You must file a copy of the revocation with the County Clerk if your Power of Attorney has been filed in the Clerk's office.  Further, if you decide to revoke a Power of Attorney, it is probably in your best interests to consult a lawyer and arrange to have a new Power of Attorney executed.

What happens if there is no POA?

If you become incapacitated and don't have a formal POA, your loved ones may have difficulties taking care of your financial affairs, such as paying your bills or cashing checks written to you. Your family may be forced to petition a court to be appointed as your legal guardian or conservator in order to gain the powers they need to care for you. This can be a lengthy and expensive process.  It is often the foresight to create the POA, prior to needing it, that save both you and your loved one's legal and emotional issues in the future. 


Reference: ILRG

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