A Power of Attorney is an instrument by which someone (referred to as the “Principal”) confers upon a trusted individual (referred to as the “Agent”) the right to make certain decisions for (NOT INSTEAD OF) the Principal generally related to health care and financial matters.  The Agent is expected to place the Principal’s interests ahead of his or her own.

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• A General Power of Attorney includes powers related to both health care and financial matters.  One may also separately confer the matters into two different  POA’s, a Financial Power of Attorney and a Health Care Power of Attorney.

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• The Financial Power of Attorney allows the Agent to perform certain designated financial services on behalf of the Principal.  The most common use of this type of Power of Attorney is to transact certain banking functions, for example depositing and writing checks, paying bills, and investing (at the direction of the Principal).

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• The Health Care Power of Attorney is mainly for medical decision-making – to speak to physicians, pharmacists, and other health care providers on behalf of the Principal.  Such communications without the Power of Attorney are generally not permitted by The Health Insurance Portability and Accountability Act of 1996 (HIPAA).  Surprisingly, this prohibition even extends to married couples unless permission has been given by both spouses to speak to such health care providers.

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A Power of Attorney can be limited to a specific function, for example, to act for the Principal in the sale or purchase of real estate.  A Power of Attorney may also be limited to a specific time – while the Principal will be out of the country or otherwise unavailable to act.

 

All Powers of Attorney are durable (unless specifically prohibited in the instrument).  This means that they are effective, and the Agent may act on behalf of the Principal, even if the Principal is experiencing cognitive defects.  The Power of Attorney literally endures even though the Principal can no longer extend permission to the Agent.

 

Practical tip – When your child turns 18, have him/her sign a Power of Attorney which gives you, the parents, the right to speak with health care providers or others, on behalf of your child.  This can also be useful if your child is going off to college and at some point you need to speak to the institution on behalf of your child.

 

Powers of Attorney are generally effective in all states, no matter where they are written or executed.