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?

posted by jimmysmits to Law & Government (4 answers total) 3 users marked this as a favorite
I am not a lawyer, I am not your lawyer and this is not legal advice.

My understanding of the Powers of Attorney as well as Agent in Advance Medical Directives for my parents is that they are active as soon as they are signed and notarized. The Attorney In Fact (the person who is designated as having Power of Attorney) acts as an attorney and seer-to-of-things for the person-who's-granting-the-PoA. In Advance Medical Directive-land, the designated Agent is also charged with responsibility to seeing to it that the person who's granted the Agent those rights gets what the grantor of agency wants.

The nature of the Attorney In Fact's or Agent's relationship with the grantor of the Power of Attorney or Agency (in the case of Advance Medical Directives) is not your determination to make. Unfortunately most (not all) Power of Attorney documents and Advance Medical Directive documents do not have a lot of leeway for anyone to question the nature of or good will in that relationship.

My understanding of the rights of the Attorney in Fact and Agent is that they get to do and take charge of whatever is delineated in the related documents for them to take charge of and that it's optional (and founded largely on their willingness, good will, time and resources available and whatever's specifically set down in the documents). Also, yes, parts of a PoA or Advance Directive can be enforced without others being enforced, though the principle of the agency in both is supposed to rely on good will and a good relationship between the grantor and grantee, so one would hope that the Advance Directive's provisions would be enforced by the Agent in toto, at need.

Also it's my understanding that the grantor of the rights of Agency and Attorney in Fact is usually able, via measures set down in the documents, to override the Agent's or Attorney in Fact's opinions and direction, just as any person can override what their regular attorney or accountant or doctor or other legal/financial agent/medical agent can.

Also if the grantor is competent, s/he can redesignate an Agent or Attorney in Fact by cancelling the current agreement and coming to a newer agreement with another agent/attorney in fact.
posted by kalessin at 9:25 AM on February 21, 2014

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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