06 Apr Now is the Time to Update Your Powers of Attorney for Health Care and for Financial Affairs
Most of us procrastinate thinking about estate planning. Something else always seems more urgent. But now we are under an order by the governor to shelter-in-place during the COVID-19 pandemic. Suddenly we have plenty of time to think about becoming gravely ill, and about who will make financial and health care decisions for us should we not be able to. If we become ill, who will pay our bills? Who will protect us from being taken advantage of while we are sick? As reported cases and fatalities from the pandemic increase, people are finally thinking about creating or updating their powers of attorney. The American Bar Association reports that two-thirds of all adults have no estate plan. There is no better time than now for you to make sure you have executed the two most important documents in your estate plan – a durable power of attorney for health care including an advanced health care directive, and a durable power of attorney for financial affairs.
A durable power of attorney for health care with an advanced health care directive allows you to select a trusted family member or friend (your health care “agent”) to make health care decisions for you if you are not able to make those decisions. It also allows you to leave specific instructions about what kind of care you want to receive and what your wishes are regarding end of life issues. California also recognizes what is called the “POLST” – “Physician Orders for Life Sustaining Treatment.” This is a set of medical orders that addresses key critical care decisions consistent with the patient’s wishes. These documents ensure that your family and physicians clearly understand who is in charge of carrying out your wishes, and what kind of care and treatment you prefer. You can also specify whether you want to be an organ donor and what specific treatment you would like based on your religious beliefs.
What happens if I am hospitalized and incapacitated and I do not have a power of attorney for health care with an advanced health directive or a POLST? The hospital will provide treatment and seek input from your family regarding any important medical issues that arise. In the event that your family disagrees about the kind of care you should receive, or the hospital is unable to locate a family member, the hospital may ask the courts to appoint a guardian to make decisions for you. If you have a durable power of attorney for health care with an advanced health directive, it avoids family disputes and empowers your health care agent to make the decisions you would make if you had the capacity to speak for yourself.
A durable power of attorney for financial affairs also allows you to select a trusted family member or friend (your “agent”) to pay your bills, collect your income or benefits, and handle your finances. The powers can be limited to a few tasks or single task, or you can specify broad powers including handling litigation on your behalf, filing your taxes, buying and selling real estate, or any other financial decision making need you may have. You can also limit the power of the agent to only “spring” into action when you are incapacitated. If you are hospitalized or quarantined, or face temporary incapacity, a financial power of attorney is crucial to ensure that your financial well-being does not suffer during your medical treatment.
You don’t need to find a notary or to go to an attorney’s office to execute most powers of attorney or a POLST. You may createpowers of attorney for health care and an advanced health care directive, along with a POLST, simply with your signature along with the signature of two adult witnesses. The witnesses cannot be your designated health care agent, your health care provider, or an employee of your health care provider. While a durable power of attorney for financial affairs can also be executed in front of two witnesses (neither witness can be your agent), if you are asking your agent to handle any real estate transactions, the document must be notarized so the document can be recorded. Your attorney can prepare the documents and send them to you via email for execution. Finally, the California legislature has created standard statutory powers of attorney for both health care and financial affairs that can be used and are readily available online. The POLST form was created by the California Emergency Medical Services Authority in concert with the California Medical Association and it is also available online.
Even though standardized forms are available online, many people feel more comfortable having an attorney review their specific circumstances and assist them in completing documents, often as part of a more complete estate plan. The lawyers of Brown White & Osborn LLP are available to help you choose and prepare such crucial documents – and to do so remotely, compatible with social distancing.
Don’t procrastinate further – get your powers of attorney executed! While we are sheltering in place, we have a lot of choices regarding how we spend time. We certainly can occupy our all of our time watching movies on demand, scouting for toilet paper, or taking the dog for walks while six feet apart. In addition either create or update your powers of attorney. Afterwards you can relax knowing that you are better prepared for whatever COVID-19 brings. Once you have your powers in attorney in place, your California powers of attorney remain valid until you die or revoke the document. And your family will thank you. There will be minimal fighting and disagreement at the hospital – you have told them who is in charge and it’s your wishes that must be followed.