It is not fun preparing for a health crisis. I got a clear reminder that I went for a medical check-up on a Friday afternoon this past January. Early on in the process, after the doctor has seen my heart test, I was instructed to stop and go to the hospital immediately.
That is not what I wanted to hear, then or ever. But my wife Margie and I went to the hospital and were greeted by a cardiologist. He asked if my heart pain has stopped. I explained I had no heart pain and felt fine. After some discussion, he set me up to visit his office on Monday to take a stress test. I was facing a health crisis of unknown size.
With that, the whole weekend seemed like a stress test. We also had a snowstorm forecast for Sunday night, so the Monday visit was somewhat up in the air.
It did snow, but the office was opened, and we kept the visit. Once on the treadmill for a few minutes, the nurse asked if I could go faster and then faster and longer. These seemed to be good questions, and they were. It turns out I do have an unusual EKG, as do many people. My being a lawyer was enough to panic my general practice doctor, but the cardiologist gave me a clean bill of health.
Margie wanted a second opinion. I explained that we only get those if we don’t like the first opinion. We do a second round of tests, and I am fine. Take off some pounds, take more time off, and I will be fine. I count my blessings that this turned into a motivating educational moment with no bad consequences.
That whole mini-drama drove home to me the reality of a medical crisis. I was preparing for bypass surgery and a few months in bed.
Suppose you face a similar health crisis? Who has the legal authority to make medical decisions for you or to gain access to assets? You need to have certain estate planning legal documents already in place, according to the article “Tips you should know for Powers of Attorney and Advance Directives” from seacoastonline.com. These are two basic tools all adults should have on hand:
Power of Attorney. A power of attorney (POA) allows one person, the “principal,” to appoint another person as their “agent” (also known as an “attorney in fact”). The agent has the authority to act on behalf of the principal, depending on the powers described in the document. Each state has its own laws about who can be an agent, if more than one person can be appointed as an agent and if there are limits to what power can be given to an agent. Your estate planning attorney will be able to create a POA to suit your situation.
You can create a POA to give extensive powers to an agent. This is sometimes called a “general” POA, where agents can do everything you would do, from accessing and managing bank accounts, applying for Social Security, and filing tax returns. A POA can also be limited in scope, known as “limited” POA. You could permit an agent only to sign a tax return or conduct a specific transaction.
In most estate planning scenarios, the POA is “durable,” meaning the named agent can continue to have authority to act, even if the principal is incapacitated after the documents have been executed. This makes sense: a durable POA generally avoids having to go to court and have a guardian appointed. The person you have selected will be the POA, not a court-appointed person.
Advance Directive. The advance directive, or health care power of attorney, allows a person to appoint another person to make medical decisions on their behalf if incapacitated. In some states, this is called a durable power of attorney for health care, and in others, it is referred to as a health care proxy.
In most cases, the advance directive becomes effective when one or more treating physicians determine the person no longer has the capacity to make or communicate health care decisions. Being prepared when facing a health crisis avoids having to go to court to have a guardian appointed. If time is of the essence, any delay in decision-making could lead to a poor outcome. If there is no advance directive and physicians have decided you cannot make these decisions, they go by a hierarchy of relatives to make the decisions for you. If you have an estranged adult child, for instance, but they are your next-of-kin, they could be the one making decisions for you.
If you have children who recently became legal adults (usually age 18), these documents will protect them as well, since just being their parent does not provide you with the right to make these decisions.
Be prepared if you face a health crisis as I did. I can assure you from my recent experience that there is still plenty to be anxious about even when documents are in place.
Reference: Seacoastonline.com (June 27, 2021) “Tips you should know for Powers of Attorney and Advance Directives”
