Incapacity Planning Including Healthcare Directives and Financial Powers of Attorney

It’s never too early to begin planning for incapacity.  There are a variety of steps you can take to plan for incapacity including:

  • Execute a financial power of attorney to take care of your financial affairs;
  • Execute a health care directive to appoint a health care agent and to express your wishes about end of life treatment;
  • Confirm that all of your assets are properly titled;
  • Consider the purchase of long term care insurance;
  • Discuss your wishes with the individuals you name in your health care directive and your power of attorney.

HEALTH CARE DIRECTIVES

What is a health care directive?

A health care directive is a legal document which enables a person to communicate the person’s wishes about incapacity, illness and end-of-life care.  A health care directive can do one or both of the following:

(1) Inform others (such as nurses, physicians, social workers and family members) about your wishes pertaining to your health care, care during illness, pregnancy and end-of-life care and/or

(2) allows you (the “principal”) the power to appoint an individual (known as the “health care agent”) to make health care decisions on your behalf should you lack decision making capacity.

What types of instructions can I put in my health care directive?

Examples of the types of information and instructions that may be included in your health care directive are as follows:

  • The person(s) you would like to list as your health care agent and alternate health care agent;
  • Instructions regarding whether or not you wish to receive artificial life sustaining measures;
  • Instructions regarding your pregnancy;
  • Instructions regarding care during an illness;
  • Instructions regarding artificial nutrition and hydration;
  • Instructions regarding pain medications;
  • Instructions regarding antibiotics;
  • Instructions regarding whether you wish to donate organs upon your death;
  • Instructions pertaining to your wishes about burial vs. cremation;
  • Your wishes regarding funeral arrangements, if applicable;
  • Information regarding care facilities (such as nursing homes and hospitals) where you would like to receive care;
  • Your wishes for care in accordance with your values, morals and religious beliefs.

What are the requirements for an individual to be a health care agent?

A health care agent must be an individual age eighteen (18) or older.

What is the difference between a health care directive and a living will?

In the past, Minnesota law provided for a variety of other different types of health related documents including durable health care powers of attorney and living wills.   In August of 1998, Minnesota law changed so that individuals can use one document to encompass all of an individual’s health care instructions and wishes, a health care directive.

What are the requirements for a valid health care directive in Minnesota?

Under Minnesota Law, a valid health care directive must be in writing, dated, and state the name of the principal creating the health care directive.  The health care directive must also be signed by the principal and it must contain verification of the principal’s signature by a notary public or by two witnesses.  Additionally, the health care directive must include health care instructions, appoint a health care power of attorney, or both.

What if I execute a health care directive and then I decide a few years later I change my wishes and I want to create a new health care directive—is that possible?

Yes, during your lifetime, you can revoke your health care directive and create a new one pursuant to the terms set forth in the Minnesota Statutes.

FINANCIAL POWERS OF ATTORNEY

What is a financial power of attorney?

A financial power of attorney is a legal document which allows the drafter (commonly known as the “principal”) to name an individual (known as the “agent” or the “attorney-in-fact”) to act on behalf of the principal under certain circumstances.   A financial power of attorney does not include the authority to make health care decisions.  If you wish to authorize an individual to make health care decisions for you, you should sign a health care directive.

Who will be my Agent/Attorney-in-Fact?

You have the ability to appoint an individual of your choosing.  Many people appoint a trusted friend or family member.  Your agent must be eighteen (18) years of age or older.  You may also name alternate agent(s) in case your primary agent is unwilling or unable to serve.

What powers can I give to my agent?

A principal must assign specific powers to his or her agent.  These powers can include the authority to sell real estate, paying bills, managing bank accounts and making investments.  A financial power of attorney CANNOT give the agent the power to prepare a will, the power to vote or the power to seek a divorce on the principal’s behalf.

What is the benefit of having a financial power of attorney?

If you are unable to make financial decisions for yourself due to incapacity or illness, your agent/attorney-in-fact will act on your behalf in the areas enumerated in your financial power of attorney.  However, if you become incapacitated without a power of attorney, someone (typically a family member or friend) would need to arrange for a court proceeding (which can be costly) to be appointed as your guardian or conservator in order to manage your finances.

What if I change my mind? Can I revoke my financial power of attorney?

Yes, provided you still have the mental capacity and fitness to execute a power of attorney, you can- at any time- revoke your financial power of attorney.  The Minnesota Statutes set forth specific methods for revocation of a power of attorney.

Will my agent/attorney-in-fact be able to act on my behalf after my death?

No.  A financial power of attorney cannot act subsequent to your death.

If you are interested in obtaining a health care directive and/or a financial power of attorney, please contact Swanson Law office at (651) 295-8762 to schedule a consultation.

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