A power of attorney (POA) assigns someone to act on your behalf in either broadly defined or very specific terms, depending on the type of POA. In this guide, we’ll see how a general power of attorney compares to a durable POA and a living will.
What is a Power of Attorney?
Powers of attorney include general POAs and limited POAs. The former typically gives an individual, known as the “agent,” control over the decisions of another individual, known as the “principal.”
However, a lawyer will often specify limited roles and provide either a healthcare power of attorney, a financial power of attorney, or both, dictating whether or not the agent has control over financial decisions and healthcare decisions.
With a limited POA, the principal names an agent to act on their behalf over something specific, such as a property sale. This control only exists for as long as the principal is alive and once the act has been finalized, that power is relinquished.
Depending on the nature of the POA, an agent acting on the behalf of the principal may have control over financial matters, end-of-life care, and medical decisions, including:
- Where and how medical care is provided
- Where the principal lives (nursing home, assisted living facility, etc.,)
- What food the principal eats
- Access to finances to pay for housing, healthcare, and debt
- The ability to apply for benefits such as VA and Medicare
- Permission to file taxes on behalf of the principal
However, whether acting as a health care agent or a financial agent, a POA will not allow an individual to:
- Change the principal’s will
- Act on their behalf after death, unless they have been granted permission in the will
- Transfer the POA to another person
- Vote for the principal in an election
What is a Durable Power of Attorney?
A durable POA is like a general POA, the difference being that it explicitly assigns control to the agent if and when the principal becomes incapacitated. Following incapacitation, an individual can place a loved one or business partner in control of their affairs and, once they recover or pass away, that control ends.
Generally, a POA will end when the principal is incapacitated, and it may also cease following the diagnosis of a terminal illness or a degenerative condition, such as Alzheimer’s. With a durable POA, it will continue, potentially providing the agent with control over real estate, life decisions, and medical treatments.
What is a Living Will?
A living will is a legal document that instructs individuals on how to act when you become ill or incapacitated and are no longer able to express your desires. There are no specific formulas to follow and the will can be as succinct or comprehensive as you wish. Generally, it will cover aspects such as:
Advance Health Care Directives
Do you want to avoid the use of certain drugs and treatments? Would you prefer it if treatments, such as dialysis, were not used and if specific tests were not conducted? Your healthcare wishes can be detailed in your living will.
Do Not Resuscitate (DNR)
A DNR order is perhaps the most important health care directive in your living will. This order is completed by a healthcare provider and states that the patient does not wish to undergo life-saving and/or life-prolonging treatments in the event of a respiratory or cardiac arrest.
The existence of a DNR doesn’t mean that all health care will stop. It only refers to life-saving treatments, such as the use of a ventilator or defibrillator.
In some states, DNRs have been replaced by a more specific order known as a Physician Order for Life-Sustaining Treatment (POLST) which details the patient’s preferences regarding a host of health care decisions.
When you’re relatively healthy and young, it’s easy to dismiss palliative care, lifesaving treatments, and life support. But it’s a different matter when you fall ill. Generally, humans cling onto life. It’s precious, valuable, and not something that should be dismissed with ease.
Palliative care is designed to make you comfortable and to deal with the physical and psychological issues that occur in the latter stages of life. It’s not something that should be dismissed easily. Make sure you discuss your wishes and your reasoning with family members and loved ones.
Frequently Asked Questions about Powers of Attorney
POAs are much more complicated than this short article suggests, and they can also differ from state to state. If you still have some questions about how they work, take a look at these FAQs.
I Don’t Want to Lose Control of Everything, What Should I Do?
When you create a POA, you don’t automatically assign all control over to the agent. This is something you can discuss with your attorney, being sure to include only the things that you want to assign.
I Have a POA, Do I Need a Will?
POAs, including durable powers of attorney, are not a substitute for a will and the person you assign as an agent will not automatically control your estate after you die. You need to create a will and assign an executor and beneficiaries.
I Have a Will, Do I Need a POA?
If you believe that you will become incapacitated and want specific people to control your affairs, yes. Your will only takes effect when you die.
Can Anyone be an Agent?
Technically, yes, but you’re giving that person control over some very important aspects of your life so it’s important to trust them. Agents are often spouses or children.
Can I Still Act?
If you are not incapacitated, you can still make decisions, and these will take priority over the decisions made by your agent. However, if they act first, such as in the sale of a property, it may be finalized before you have a say as your permission is not required. In such cases, simply expressing your opposition is not enough to undo the sale.
Can it be Canceled?
If you believe that the agent is not acting with your best interests in mind, you can revoke the POA and take that power away from them. You will need to provide the agent and any other involved parties with a signed notice.
Can I Give POA to Multiple People?
You can assign two or more individuals to act as agents. You can also assign backup agents in the event that the first dies or is incapacitated.