Power of Attorney
A Durable Power of Attorney (DPOA) is a written document authorizing a named person called “agent” to handle certain specified types of transactions for the person making the power of attorney, called the “principal”.
General Powers of Attorney are very broad and allow many types of transactions. Limited Powers of Attorney convey the power of attorney to an agent to handle a specified task, for example, to attend and sign documents at a real estate settlement.
The Power of Attorney is “durable” in that it remains valid even after the principal no longer has legal capacity to convey property or handle similar transactions, perhaps due to an injury or an illness such as Alzheimer's disease. However, legal capacity must exist when the Power of Attorney is first executed. All Powers of Attorney executed since 1993 in Pennsylvania are durable unless otherwise stated.
A “springing” Power of Attorney can be executed so that it will only take effect if the principal's legal capacity has diminished or the principal becomes disabled. The agent's power to act then “springs” into effect upon the happening of an event such as disability. A major question of a springing Power of Attorney is: when does it take effect? Springing Powers of Attorney can include a formula that involves one or more physicians attesting to the fact that the principal has lost his/her capacity or is disabled in order for the Power of Attorney to take effect. Documentation that the triggering event has occurred is normally required.
Under a new law Pennsylvania now requires a notice in capital letters at the beginning of the Power of Attorney, signed by the principal, so he/she acknowledges understanding of the powers and duties conveyed to an agent under the Power of Attorney and stating that the Power of Attorney has been read and understood. The new law also requires an acknowledgment signed by the agent that he/she has read the Power of Attorney and understands it and that he/she is to exercise the powers given to him/her for the benefit of the principal only. The agent agrees not to co-mingle any assets of the principal with his/her own assets and further agrees to exercise reasonable care and caution, keeping a full and accurate record of all of his/her actions.
The power of the agent to make gifts has been further defined in the new law. The agent may make limited gifts on behalf of the principal to the principal's spouse and children and to a spouse of the principal's child. This can include the agent if he/she is one of the above. During each calendar year, the fits may not exceed the principal's annual exclusion from the federal gift tax permitted under the Internal Revenue Code.
The new law also allows unlimited gifts to any persons the principal may choose, is specified by the principal in his/her power of attorney. For specific procedures you should contact your elder lawyer.
Revoking a Power of Attorney
As long as the principal has legal capacity, he/she can sign an affidavit to revoke the Power of Attorney, name a new agent or designate a co-agent to check on the actions of the first agent. The Power of Attorney must be notarized and witnessed since some Powers of Attorney must be recorded at the courthouse, for example, when real estate is being transferred. Often if a Power of Attorney does not have a recent date on it, banks and other institutions will require the principal to sign a “certification” that the Power of Attorney has not been revoked and is still in full force.
Special Powers of Attorney
Health Care Powers of attorney and Financial Powers of Attorney are special forms of Power of Attorney that delegate to an agent the power to act on your behalf regarding medical and health issues in the event that you are unable to do so yourself. The new Power of Attorney statute in Pennsylvania authorizes the principal's admission to a medical, nursing, residential or similar facility, entering into agreements for his/her care and authorizing medical and surgical procedures. A Financial Power of Attorney is also a special form of Power of Attorney that delegates to your agent the power to act on your behalf relating to financial affairs only.
Failure to Act
Any person who fails to act according to the directions of an agent appointed by the principal, without reasonable cause, can be subject to money damages if suit is filed.
A Power of Attorney can be an invaluable tool in aiding an elderly individual who needs assistance, but it can also be a means to facilitate fraud. Steps you can take to minimize that potential are:
Choose the right person to act as your agent under a Power of Attorney. Make sure that the individual is someone you can trust who will make decisions on your behalf in accordance with your wishes.
Be careful what powers you give to an agent under a Power of Attorney. Make sure you read every word and understand what powers are included in any Power of Attorney before you sign the document. Powers of Attorney can be broad and narrow, allowing a full grant of authority to act for an individual or providing only a limited power of attorney for a particular event or situation, i.e. power of attorney for sale or real estate.
Consider appointing more than one person to act as your agent. While this may be more cumbersome and less efficient, it provides a process of checks and balances in that your agents must agree on decisions and actions.
To prevent premature uses of the power by your agent, you can withhold the document until it is needed or require that the document be held a by a non-agent with full instructions for release agent.
Require your agent to account periodically to a disinterested third person.
Health Care Provisions in a Power of Attorney
A Power of Attorney usually deals with financial and personal issues but can include medical treatment. The law allows an agent, appointed by you in your Power of Attorney, to authorize your admission to a medical, nursing, residential or similar facility, and to enter into agreements for your care if you so state. The agent may, with respect to your admission to a facility, execute consent or admission forms required by the facility and enter into agreements for your care by facility or elsewhere. The law also allows you to authorize your agent to arrange for an give consent for medical, therapeutic, and surgical procedures, including that administration of medications.
If one person is to act as your agent for your financial affairs and another as agent for your health care, you need to create two separate documents. A Living Will, discussed below, is a document which allows you to specify your desires regarding medical decisions more precisely than with a Power of Attorney, which is limited by law. In most cases, it makes more sense to have your medical desires expressed in your Living will rather than in your Power of Attorney, thus you and your lawyer must be careful that these documents complement and do not conflict with one another. Finally, a Power of attorney can, if you wish, give your agent the authority to make an anatomical gift of all or part of your body.
Advanced Health Care Declarations (Living Wills)
In 1992, Pennsylvania became one of the last states to pass “Living Will” legislation; in 1994, changes to the law allowed a declarant to make an anatomical gift of all or part of the body.
Declarant. A person who makes a declaration (Living Will) in accordance with the act.
Attending Physician. The physician who has primary responsibility for the treatment and care of the declarant.
Declaration (Living Will). A written document voluntarily executed by the declarant in accordance with the act. A written statement that refuses life-sustaining treatment if the maker is incompetent and either in (a) a terminal condition, or (b) a state of permanent unconsciousness.
Health Care Provider. An entity licensed or certified by the laws of Pennsylvania to administer health care in the ordinary course of business or practice of a profession. This term includes personnel recognized under the Emergency Medical Services Act.
Incompetent. The lace of sufficient capacity for a person to make or communicate decisions concerning him/herself.
Life-Sustaining Treatment. Any medical procedure or intervention that serves only to prolong the process of dying or to maintain the patient in a state of permanent unconsciousness. This treatment includes nutrition and hydration administered by gastric tube or intravenously or any other artificial or invasive means if the declaration so provides.
Medical Command Physician. A licensed physician who is authorized to give medical command under the Emergency Medical Services Act.
Permanently Unconscious. A medical condition diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment. This term includes a persistent vegetative sate of irreversible coma.
Qualified Patient. A person who has executed a declaration and who has been determined to be in a terminal condition or to be permanently unconscious.
Terminal Condition. An incurable and irreversible medical condition in an advanced state caused by injury, disease, or physical illness which will, in the opinion of the attending physician, to a reasonable degree of medical certainty, result in death regardless of the continued application of life-sustaining treatment.
Anyone of sound mind who is 18 years of age or older or who graduated from high school or has married may execute a Living Will at any time. The Pennsylvania law states that the document must be witnessed by two individuals each of whom are 18 years of age or older. Other states may require that the Living will is acknowledged by a Notary Public. The form may be tailored to meet your specific desires.
It is not a bad idea to discuss with your doctor the kinds of medical treatment you may wish to withhold and the effects on your body. One copy of your Living Will should be given to your primary care physician who will place it in your medical records. In following your declaration, your doctor cannot be sued; however, your doctor can refuse to comply with your declaration if it is against his/her conscience. You may decide it is best to name a surrogate to carry out your specific directions when you are unable to make them. You may also expressly exclude certain persons from acting as your surrogate, i.e. a spouse from whom you are separated.
Hospitals and nursing homes must by law provide patients with information concerning Living wills. However, declarations are optional and no entity can charge a different fee depending on whether a Living Will has been signed.
Living Wills become operable when the attending physician is provided with a copy and the declarant is determined by the attending physician to be incompetent and in a terminal condition or in a state of permanent unconsciousness by certifying, in writing, their diagnosis and arranging for the physical examination and confirmation of the diagnosis by a second physician.
Absence of A Living Will
If a patient does not execute an advanced directive, there is no presumption of the patient's intentions to consent or refuse life-sustaining treatment. Recently, the Pennsylvania Supreme Court held that a close relative, with the consent of two physicians and without court involvement, may remove life-sustaining treatment from an adult relative who is in a persistent vegetative state where that adult had left no advance directive.