Wondering. Planning for Incapacity.
Finances: It is best not to assume that your spouse will have total control of your finances if you become incapacitated. Although your spouse has some rights over property you own together, like joint bank accounts, he or she is restricted from doing certain things with that property. That restriction is absolute when assets are titled in only one spouse’s name… such as on a retirement account. Because an incapacitated spouse without legal documentation cannot stand in the shoes of the other, many financial transactions could possibly be delayed or prevented.
Medical: Recently, federal and state law expanded the scope of exclusivity of the right to the privacy realm by limiting the sharing of patient information and records. Thus, a patient’s spouse, domestic partner and other family members face increasing obstacles when they seek medical information about loved ones—even though some healthcare providers, perhaps motivated by compassion, are disregarding the legal restrictions.
For these reasons, it is prudent to have a Financial Durable Power of Attorney and a separate Health Care Durable Power of Attorney called a Physician Advance Directive.
Top five reasons you want these two types of Powers of Attorneys:
1. To protect yourself. When you have a Durable Financial and a Health Care Power of Attorney, it is YOU who decides who YOUR decision maker will be if you are incapacitated. These “agents” are people you have decided, after due deliberation, you trust to make decisions for you if you cannot make them for yourself. This is crucial with our HIPAA laws because medical information about you when you are sick or injured may be hard to obtain.
2. The law will not protect you. State laws provide for who will make decisions for you if you fail to adopt the two types of DPOAs. The person the State appoints may not be the same person you would have chosen. The odds of that happening are even greater for unmarried persons, or people in unconventional relationships.
3. To protect your property. The Financial Durable Power of Attorney allows you to select someone you trust to handle your money and property if you are incapacitated. This affords you much greater comfort than having a Court supervised Conservatorship appointed for you. Your choice is generally always better than the choice forced on you by law.
4. To protect your family. By naming your own decision maker, you can protect your family by creating a greater likelihood that your choices and plans for yourself and family will occur if you are disabled. This affords greater protection and comfort to you and your family.
5. To avoid conflict in the family when you are sick. Nothing will tear a family apart faster than conflicts over who should be your decision maker. When you create your DPOAs, you can, in most cases, eliminate conflict over who should make your decisions if you are incapacitated. To have your own choices respected and enforced will always help you sleep better. Again the key is to choose your decision makers wisely.