Help Me Understand Power(s) of Attorney
February 21, 2014 8:09 AM   Subscribe

What are the parameters that determine how and when a power of attorney becomes active or inactive?

I work in a field where I deal with healthcare POAs intermittently (thought I'm also interested in responses regarding property/financial POAs as well). For all of their detail (I'm in Illinois, btw), it's not exactly clear how and under what circumstances a power of attorney is activated. Clearly if someone is unconscious or comatose that would necessitate going to a POA, but what if a person is cognitively compromised to the extent that they may be able to speak for themselves on basic decisions, but not comprehend more complex ones? And what about circumstances where there is a reasonable expectation of recovery/improvement over time (e.g., after a minor stroke or something like that)? Some specific questions below:

Does the law dictate who, legally, can activate a power of attorney?

Once activated, is it a global, all-or-none thing, or can it be issue by issue (e.g., perhaps an individual is capable of making a clear decision that they do not want to undergo any surgeries, no matter the circumstances, but they do not have the capacity to comprehend the relative risks/benefits of other treatment options available to them)?

Once activated, does it remain active in perpetuity? If not, what parameters determine how/when it would be deactivated?

Can anyone recommend specific, digestible resources to help me understand the legalities and practicalities of these situations?

Thanks!!
posted by jimmysmits to Law & Government (3 answers total) 3 users marked this as a favorite
 
I am a lawyer, I regularly draft Power of Attorney and Advance Health Care Directive forms(POAs and AHCDs). TINLA, IANYL. I work in CA so these details are CA specific. It works pretty similarly in other states.

The parameters that determine when a specific POA or AHCD becomes active or goes inactive depends almost entirely on the specific document in question. There will be wording in the document that specifies when the attorney-in-fact or agent has power to make decisions on your behalf.

You can have the POA/AHCD be effective immediately upon execution. You can have the POA/AHCD be effective only upon the incapacity of the grantor. You can have the POA/AHCD automatically deactivate once the grantor regains capacity. You can grant the attorney-of-fact/agent complete decision making authority or you can limit their powers. Are you really against donating your organs? Your AHCD can say that your agent can make all decisions for you if you're incapacitied and incapable of making decisions yourself, except for the decision to donate organs which you will never do. You can define what "incapacity" means specifically in the document. You can have it say that incapacity will be determined by the primary care physician or another doctor.

The only way to say with any certainity how a specific POA/AHCD works, is to read it and discuss it with an attorney. However, NOLO is generally a reliable resource for understanding the basics and will give you an idea of the types of questions to ask an attorney on this topic.
posted by Arbac at 9:44 AM on February 21, 2014


My mother asked me to be her PoA several years ago before a major surgery and we signed the documents then, "just in case". Fast forward to mid-November 2013 when it was discovered that she was remarkably unwell and was transported to the hospital. She has since been diagnosed with early-onset frontal temporal dementia. My PoA was activated prior to diagnosis, but was not activated until after two doctors examined her, each independently determining she was cognitively unable to make health care decisions on her own behalf. It is 100% certain that she will continue to deteriorate so I will continue being her Person for now. We are also in the process of establishing guardianship for her, one sib has agreed to be guardian of her estate and of her person, and I will serve as standby.
posted by mcbeth at 11:14 AM on February 21, 2014


If you work for a healthcare provider, that provider will have legal counsel who should be asked to address these questions. A provider which asks its employees to deal with healthcare directives but gives them no training on how to do that is asking for trouble.
posted by yclipse at 3:52 AM on February 22, 2014


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