None of us can foresee when an accident or a medical emergency
might leave us unable to make our own decisions regarding medical treatment or
legal issues. Rarely do we consider things like who will handle the everyday tasks,
such as paying bills, renewing car insurance, or maintaining our homes? Even
more importantly, what medical procedures are doctors performing on you, how
far will doctors go to keep you alive, and who will know your wishes as to when
to make that all-important decision to end all life-saving procedures? While we
all hope never to experience this situation, it is important to plan for it to
make sure that your wishes are known and are carried out.
In the absence of any advance planning on your part, your loved
ones will have no authority to make decisions for you and will need to petition
the Probate Court to appoint a Guardian or Conservator to act on your behalf.
"Guardian" and "Conservator" are the legal terms for
individuals who can make legal and medical decisions on behalf of another
person. However, the Probate Court may not appoint a Guardian or Conservator
who would be the person you would choose to take on that responsibility if you
had the opportunity to name someone. Another problem with Probate Court
involvement is the cost, in both time delays and dollars, of using the court
system.
By simply taking the time to execute a Patient Advocate
Designation (which names the person or persons designated to make medical
decisions on your behalf) and a Durable Power Of Attorney (which names a person
or persons designated to make legal decisions on your behalf) you can name the
people you want and trust to making decisions on your behalf should you become
incapacitated. You avoid arguments among family members and Probate Court involvement
is eliminated.
The Durable Power Of Attorney names a person, known as an
Attorney-in-Fact, to make legal decisions on your behalf. A well-written Durable
Power of Attorney lays out what authority your Attorney-in-Fact has over your affairs.
At can allow that person to pay your bills, deal with your assets and
investments, negotiate and sign contracts on your behalf, and even take care of
your pets. It can also allow your Attorney-in-Fact to initiate legal
proceedings on your behalf.
The Patient Advocate Designation grants a person the
authority to make medical decisions on your behalf. The person you name as your
Patient Advocate has the authority to make decisions on treatment and care, as
well as providing guidance as to your wishes concerning life-sustaining
procedures.
The decision to name a person to make legal and medical decisions
on your behalf in the event you are unable to make them because of illness or
incapacity should not be made lightly. You should choose someone you feel is
capable of making these important legal and medical decisions just as you
would. It is usually a good idea to name a second person in case your primary
choice is unavailable. It is also a good idea to communicate with those persons
name so they know that they will have the authority in the event of your
incapacity and will know your desires if they are required to execute that
authority.
Both the Patient Advocate Designation and the Durable Power
of Attorney are available for everyone over the age of eighteen. With
parent/child situations, after the age of eighteen even a parent will most
likely be required to petition the Probate Court to name a Guardian should
their child become incapacitated. If married, a spouse is able to handle matters
involving jointly owned property, but any other issue will require the authority
of the Probate Court.
It is important in creating these documents that you speak
with an attorney familiar with the estate planning process. Your attorney will
ensure that both the Patient Advocate Designation and Durable Power of Attorney
clearly state your wishes and are sufficient for whatever purpose they are
needed should you become incapacitated. Your attorney should also take the time
to explain the scope of these documents and to advise you as to any additional
documents that may be required to ensure that the people you name follow your
wishes.
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