Incapacity Management: Do I Have All The Right Documents?

Discussing a Document

A Power of Attorney is a vital document for every adult. This document allows you to appoint another person as your "attorney-in-fact," which gives that person the authority to act on your behalf in legal matters, should you not have the capacity to do so. A power of attorney can be drafted in several forms.

If you’re in a tragic accident that leaves you in a coma, there will be financial decisions that will need to be made. If you don’t plan ahead for incapacity, a family member will have to hire an attorney and ask a judge to grant a Power of Attorney that will permit her to act on your behalf. That could be an expensive and time-consuming task.’s recent article, “If You Don’t Have This, You Need It” says that a better solution is to be proactive and have your attorney create a Power of Attorney before you need one. Let’s look at the different types of POAs.

  • Springing Power of Attorney. This only becomes effective under certain conditions, typically incapacity. A big disadvantage of this POA is that when someone tries to use it on your behalf, they may be required to “prove” that you are actually incompetent, creating inconvenience and delays.
  • General Power of Attorney. This document is one in which you give your attorney-in-fact the authority to act on your behalf at any time. However, if you become incapacitated, this document is null and void.
  • General and Durable Power of Attorney. This document lets your attorney-in-fact continue acting on your behalf if you become incapacitated.
  • Limited Power of Attorney. Here, you appoint someone to act on your behalf, only under certain conditions, such as only when you’re out of the country.

Consider your own situation. Which Power of Attorney is most appropriate for you during times of incapacity? Our experienced estate planning attorneys help make this decision more accurate and easier. You will then decide whom you’d appoint as your attorney-in-fact. If you’re married, a natural choice is your spouse. However, you should also have at least one successor attorney-in-fact.

Consult with our estate planning attorneys to be sure the document conforms to state law. We can help you decide which Power of Attorney type is best for your situation.

Advance Directive for Healthcare. This document describes your wishes on end-of-life care. These documents aren’t legally binding agreements, but it’s seldom that their instructions aren’t followed and accepted by healthcare professionals. Talk to our attorneys, because they do vary by state. They’re typical, divided into two parts:

  • Living Will. In this, you’ll give detailed instructions on the level of care, should you become incompetent and facing a potential end-of-life situation. This should talk about whether you’d want to stay on life-support, remain on a feeding tube, or if you’d want hydration or pain medicines administered or withheld, should you ever be in a vegetative state. It’s far better for you to make these calls, instead of leaving it to a physician or a family member.
  • Healthcare Proxy. With this document, you appoint the individual you’d want to speak on your behalf concerning healthcare decisions. As an alternative, you can state that you’re requesting your Living Will instructions be strictly followed, and you explicitly indicate you don’t want someone to speak on your behalf. (October 26, 2018) “If You Don’t Have This, You Need It”
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