Planning for Incapacity

What is a Durable Power of Attorney?

Who can establish a Power of Attorney?

Who may act as an agent under a Power of Attorney?

What is an Advance Health Care Directive/Durable Power of Attorney for Health Care?

What is a HIPAA Authorization?


Q: What is a Durable Power of Attorney?

A durable power of attorney allows you to carry on your financial affairs in the event that you become disabled. Unless you have a properly drafted power of attorney, it may be necessary to apply to a court to have a guardian or conservator appointed to make decisions for you when you are disabled.  This guardianship process is time-consuming, expensive, often costing thousands of dollars and emotionally draining.

When you appoint another individual to make financial decisions on your behalf in a durable power of attorney, that individual is called an “attorney-in-fact.”  Anyone can be designated, most commonly your spouse or domestic partner, a trusted family member, or friend.

There are generally two types of durable powers of attorney: a “present” durable power of attorney in which the power is immediately transferred to your attorney-in-fact; and a “springing” or future durable power of attorney that only comes into effect upon your subsequent disability as determined by a doctor.  Appointing a power of attorney assures that your wishes are carried out exactly as you want them and allows you to decide who will make decisions for you.

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Q: Who can establish a Power of Attorney?

Generally, any individual over the age of majority and who has legal capacity can establish a power of attorney.

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Q: Who may act as an agent under a Power of Attorney?

In general, an agent, or attorney-in-fact, may be anyone who has legal capacity and over the age of majority.  Most individuals select a close family member such as a spouse, sibling or adult child, but any person such as a friend or a professional with outstanding reputation for honesty would be ideal.  You may appoint multiple attorneys-in-fact to serve either simultaneously or separately.  Appointing more than one attorney-in-fact to serve simultaneously can be problematic because if any one of the attorneys-in-fact are unavailable to sign, action may be delayed.  Confusion and disagreement between simultaneous attorneys-in-fact can be another cause of inaction.  Therefore, it is usually more prudent to appoint one individual as the primary attorney-in-fact and nominate additional individuals to serve as alternate attorneys-in-fact if your first choice is unwilling or unable to serve.

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Q: What is an Advance Health Care Directive/Durable Power of Attorney for Health Care?

The law allows you to appoint someone you trust – for example, a family member or close friend – to decide about medical treatment options if you lose the ability to decide for yourself.  You can do this by using a  Durable Power of Attorney for Health Care, or an “Advance Health Care Directive,” where you designate the person or persons to make such decisions on your behalf. You can allow your health care agent to decide about all health care or only about certain treatments. You may also give your agent specific instructions that he or she has to follow. Your agent can then make sure that health care professionals follow your wishes and can decide how your wishes apply as your medical condition changes. Hospitals, doctors and other health care providers must follow your agent’s decisions as if they were your own.

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Q: What is a HIPAA Authorization?

Some medical providers have refused to release information, even to spouses and adult children authorized by Advance Health Care Directives, on the grounds that the 1996 Health Insurance Portability and Accountability Act, or HIPAA, prohibits such releases.  In addition to the above documents, you should also sign a HIPAA Authorization Form that allows the release of medical information to your Agents, your Successor Trustees, your family and other people whom you designate.

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The Law Office of Gretchen J. Kenney assists clients with Elder Law, including Long-Term Care Planning for Medi-Cal and Veterans’ Pension (Aid & Attendance) Benefits, Estate Planning, Probate, Trust Administration, and Conservatorships in the San Francisco Bay Area.