While people generally understand that a Power of Attorney and Patient Advocate Designations protect them if they become incapacitated, many people are confused about how these documents work and what their designees are obligated to do.
Often, after signing their estate plan documents, our clients will ask, "now that I have a Durable Power Of Attorney and Patient Advocate Designation, what does my designated person have to do?” The simplest answer is they do not need do anything, nor can they do anything unless and until the client is declared incapacitated under the definition normally set forth in the document. The definition we use in our documents requires that two doctors certify in writing that the client is unable to care for his or her "financial or physical well-being". Once the designated person obtains those certifications, only then are they authorized to act on behalf of the incapacitated client. Upon obtaining the authority to act, the designees gain the authority and responsibility to make decisions that are in the client’s best interest.
Under the Durable Power of Attorney, the designee should determine the assets of the incapacitated person and take action to protect those assets. This may include such actions as meeting with an investment advisor to ensure the assets are properly invested, paying bills, maintaining the house or other real estate, and making sure the incapacitated person receives care. While performing these tasks, the designated person should also keep complete financial records to show what actions they took and how they spent funds. In the course of the designee’s actions, any party shown the Durable Power of Attorney can rely on the fact that the designated person has authority to act with respect to all of the legal decisions the incapacitated person might otherwise have been able to make.
The person designated under the Patient Advocate Designation has the authority to make any necessary medical decisions, including treatment, selection of doctors and facilities, rehabilitation, and decisions regarding end-of-life care. We recommend that clients discuss what care he or she wants or does not want with their designees so that those people are better able to make decisions should the time come. Often, a Living Will is executed in conjunction with the Patient Advocate Designation as a declaration of those desires, especially of the intent not to be kept alive by heroic measures if it would merely artificially prolong the dying process.
The responsibility given to another person under a Power of Attorney or Patient Advocate Designation is significant and should not be taken lightly. However the designee does not need to handle matters alone, they are allowed to employ professional advisors to assist them in caring for the client’s interests. As we always tell our clients, if it ever comes time for your designees to act, we will be there for them just like we are here for you.