POWERS OF ATTORNEY AND ADVANCED HEALTH CARE DIRECTIVES
None of us like to think about being ill or incapacitated, but if we make preparations for it, we can make things easier for ourselves and those that care for us. One way to prepare is to sign a Power of Attorney for financial matters and an Advanced Health Care Directive for medical decisions.
A Power of Attorney can be used to give someone else power over either part or all of your finances, such as banking, tax return preparation, stock transfers, or real estate sales. When a Power of Attorney is prepared for purposes of possible future incapacity, it is generally a “Springing” Power of Attorney. It doesn’t spring into life or effectiveness unless there is an attached doctor’s certificate about the maker’s incapacity. You can give a Power of Attorney to just one person, or to two or more persons. You can instruct whether the persons with the power must act jointly (all must sign any documents), or separately (any of the persons with the power can sign your documents). If you give another person Power of Attorney, that person can legally only use the power for the benefit of the person that gave them the power, and not for their own benefit. However, it is wise to make sure that you have complete trust in any person to whom you give a power of attorney.
Powers of Attorney are not only for situations of incapacity. Sometimes the power is given for a specific situation, such as if you are going to be traveling to another country, and you want your spouse or someone else to be able to sign the closing documents for your house sale. No doctor’s certificate would be required, but you can limit the period of time when the power would be effective. Other times when a Power of Attorney might be signed that isn’t a “springing” power is if a person is mentally competent enough to be able to sign the power of attorney, but because of physical disability it is difficult for him or her to get to the bank or otherwise take care of their finances.
The California Uniform Power of Attorney form can be prepared and explained by your estate planning attorney, or you can obtain a blank form online. Your signature on a Power of Attorney form needs to be notarized.
Advanced Health Care Directives combine several functions. You can give another person power to make medical decisions for you if you are unable to do so (also called a Living Will). In an Advanced Health Care Directive you can also state your wishes about end of life medical treatment. Donation of your body can be included, if desired. Advanced Health Care Directive forms can be obtained from your doctor, from your estate planning attorney, or online from the California Medical Association. After filling out the form, your signature will need to be notarized, or witnessed by two people that are not the persons that are being given the power to make medical decisions.
Sally Cooperrider, Attorney at Law (408)287-7719
210 N. 4th Street, Suite 201, San Jose, CA 95112