Power of Attorney – Do You Need One?

Woman meeting with attorneysAdults with learning disabilities most often are legally competent to handle their own affairs. However, a person with a disability may wish to have some assistance from a parent, sibling, spouse, or friend in handling certain matters.

For example, an individual with severe mathematics disorder may wish the help of another person in handling financial affairs. Similarly, an individual with a reading disability may wish assistance in interpreting educational, legal or medical documents.

Sometimes, arrangements for this help cannot be handled completely informally. Privacy laws, such as The Health Insurance Portability and Accountability Act of 1996 (HIPAA), may prevent another person from being able to access medical information concerning an individual. HIPAA is a federal law that protects the privacy of an individual’s medical records and health information.

What is the solution? It may be the durable power of attorney.

Many of us are familiar with the use of a durable power of attorney in the context of a family member acting for an elderly parent who is no longer able to manage personal, financial, and/or medical affairs without assistance. However, the power of attorney is used far more broadly. For example, if a person plans to be outside the United States for several months, he or she may execute a power of attorney designating a trusted person to handle matters that arise during the absence. Similarly, a person with a disability that impacts on functioning in a particular area may find it helpful to execute a power of attorney granting appropriate power to a designated person.

What is a power of attorney?

The power of attorney is a document an individual signs and has notarized in order to appoint a trusted family member or friend to act for and in the place of such individual in the areas set forth in the power of attorney. The person appointed is called the attorney-in-fact (as distinct from an attorney-at-law, who must be licensed to practice law). Often, a second person is designated to act as attorney-in-fact, in the event that the first person cannot perform the duties. The areas in which the designated person may act include: personal matters, financial decisions, and medical affairs. There may be one comprehensive power of attorney, or there may be separate powers for medical and for financial matters.

What does "durable" mean?

The term “durable” means that the power of attorney shall continue in effect even if the maker of the power of attorney subsequently becomes incompetent. This means that the power of attorney will be in effect from the date of execution until the revocation of the power by the maker or the death of the maker. Language to make the power durable must appear in the power of attorney and often is to the effect that the power shall remain in full force and effect despite disability, incompetence, or incapacity, mental or physical, until revocation of the power by the maker or death of the maker. Note that, if the person granting the power subsequently becomes incompetent, that incompetence does not mean the person was not competent previously to execute the power of attorney. Competence to execute the power depends upon the ability of the individual to understand what her or she is doing at the time the power was executed.

What financial powers are contained in a power of attorney?

Financial powers contained in the power of attorney may include, for example: check signing, endorsing and depositing checks, sale of stocks, bonds and real property, representation in tax matters, retaining counsel and handling insurance matters.

What medical powers are included in a power of attorney?

Medical powers may include, for example: authorize admissions to hospitals, agree to medical care, and authorize withholding medical treatment.

How do you obtain a durable power of attorney?

You may ask your attorney to provide advice regarding your particular situation and, if appropriate, to prepare the power of attorney. This may be convenient, especially if you are also having a will prepared. Some states have durable medical power of attorney forms and living will forms available at no charge.

Author: Patricia H. Latham, Washington, DC attorney, arbitrator, co-author of LEARNING DISABILITIES/ADHD AND THE LAW IN HIGHER EDUCATION AND EMPLOYMENT and SPECIAL EDUCATION LAW.

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