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What is Power of Attorney? - Definition & Sample

Instructor: Ian Lord

Ian has an MBA and is a real estate investor, former health professions educator, and Air Force veteran.

A durable power of attorney is a useful tool in making sure that a person's wishes regarding healthcare are honored if they can no longer make their own decisions. In this lesson we will look at how power of attorney works and impacts a patient's rights.

Durable Power of Attorney

Danny is getting older and wants to make sure that if something ever happens to him, his healthcare wishes are respected. If he becomes incapacitated, he also wants to make sure his wife is able to take care of the finances and affairs that affect him. Fortunately, an easy form known as a 'power of attorney' can be used to grant his wife the ability to act on his behalf. Let's take a look at what a durable power of attorney is and how it impacts a patient's rights as they prepare this document.

A durable power of attorney is a legal document which grants Danny's wife Deb the ability to act in his place if he become mentally incapable of handling his own legal affairs. These affairs include making decisions about his healthcare and controlling his finances. The term 'durable' refers to the concept that this power of attorney remains in effect upon Danny's inability to make his own decisions. With other types of powers of attorney, the document is only effective as long as Danny is mentally capable of handling his own legal matters.

The power of attorney can be made with the help of an attorney, through an online legal document service, or even via a number of free templates available online. In any case, the document will need to be notarized and/or have signed witness statements to make it a legally recognizable document, depending on the state. The purpose of the notary and witnesses is to provide assurances that the people who sign the document are who they say they are (which minimizes the chances of fraud).

Content

The exact text of a durable power attorney will vary based on the desires of the person writing it, as well as state-specific rules. However, there are a few general items that we would expect Danny to put in the document.

First, it will state specifically that it is a durable power of attorney granting Deb (Danny's wife) to act on his behalf for the stated purposes. Next, Danny would include any actions he authorizes Deb to undertake, such as making healthcare decisions (including end of life issues). He could also include financial considerations such as allowing Deb access to bank accounts or credit cards that her name isn't on.

The power of attorney should state the circumstances under which it goes into effect. Danny's document says that his wife has power of attorney for him only after he becomes incapacitated. The document should also give Danny the ability to change his mind prior to incapacitation and explain how that process would happen. A durable power of attorney will not have a set expiration date, but instead allow Deb to make Danny's legal decisions as long as he remains alive but incapacitated.

Finally, Danny and Deb need to sign the document. Depending on the state, a combination of notary seals and/or witness signatures will also be included.

Patient's Rights

When the power of attorney goes into effect Danny still has his own individual rights. His wife is obligated to follow Danny's preferences that she knows about. For example, if Danny and Deb talked about Danny not wanting to be kept alive on life support in a prolonged vegetative state, then Deb should honor that wish. Danny needs to talk to the person who will be his power of attorney, but he should also make his intent very clear in the text of the document to prevent any confusion.

Everyone hopes that Danny will recover from whatever would cause him to be incapacitated. If that happens and he is capable of making his own decisions again, then the power of attorney is no longer in effect. Danny can make up his own mind about his healthcare treatment regardless of what is in the power of attorney if he is mentally capable of making that decision.

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