Author Mark Twain famously said, “The difference between the almost right word and the right word is really a large matter – ‘tis the difference between the lightning-bug and the lightning.” He was referring to words, but the concept works in other situations. Sometimes two things are similarly named but are actually very different. In estate planning, you have the durable power of attorney and the health care power of attorney. The names indicate part of the difference. However, each power of attorney contains the name of an agent to act on behalf of the person signing the document (the “principal”). If you have signed a durable power of attorney, can the agent you named make medical decisions for you?
Someone who puts together an estate plan typically includes the following documents:
People also include trusts in their estate plans. For purposes of this article, we will focus on the durable power of attorney and health care power of attorney.
That should actually be “purposes.” The agent named in a durable power of attorney may have very broad powers or very limited. The principal, the person who signed the power of attorney, may grant the agent the power to make one transaction, like sign documents at a closing. On the other hand, the principal may give the agent authority to handle all financial matters.
A durable power of attorney is also used for incapacity planning. If the principal becomes incapacitated, the named agent can take over financial matters.
However, what the durable power of attorney does not typically grant is the power to make medical decisions. For that, you need an advance directive.
What is commonly called an advance directive may take the form of a health care power of attorney or a health care surrogate designation. A health care directive may also include a living will, which governs end-of-life care decisions.
John Mangan is an experienced Florida estate planning attorney, who has been board certified in Wills, Trusts & Estates by the Florida Bar. Call Law Offices of John Mangan, P.A. at 772-324-9050 to set up an appointment or use our online Contact Form.