choose

CHOOSING A PERSON TO BE YOUR ATTORNEY IN FACT

(Your Assets ... and... Your Health)

There are a number of things you should consider when selecting an Attorney in Fact (also known as your Agent) under a Durable Power of Attorney (HCPA) or the General Durable Power of Attorney (GDPA). This is a person who will not only be making health care decisions for you; this person will also be your advocate. This is a person who will not only be paying your bills, it is a person who may be granted authority to make gifts of your savings, investment, or even your residence!

Trust: One of the most important considerations is that this must be a person that you trust. This is the person who must speak for you if you are unable to communicate or unable to make decisions. This should be a person who will carry out your wishes and beliefs. Will this person be able to discuss your stated desires with your physician and be your advocate? Will this person honor your wishes in providing for your needs or the needs of your spouse, or will this person decide that using your savings to pay his or her bills is what you would have wanted?

Location, Location, Location: If you are hospitalized or in a nursing home, it may extremely important for the person to be available in case of an emergency and to be available to consult with your doctor or the health provider staff responsible for your care. If you are in a nursing home, one of the greatest assurances of competent care is that your agent be on the scene. Periodic visits, whether during scheduled or unscheduled times, affords your Agent the best opportunity to personally evaluate your condition, your medical care, and your treatment. If the agent does not reside near you, will that person take steps to have your situation personally monitored by a case manager or by other means?

If your designated agent does not live nearby, consider what directions should be added to your planning document. For instance: directing your agent to hire someone to visit you or directing your physician to speak with your agent by telephone.
In today's electronic age, your designated agent may not need to live close. Certainly, whether by mail, telephone, or computer, your agent can monitor your investments, bank accounts, and make certain bills are paid promptly.

Health Care Plan: Decisions concerning life and death may not be the most important decision to be made on your behalf. Depending on your condition, daily decisions and attention are frequently needed.

Is there a care plan in place? Are you participating in activities or therapy? Has there been a change in your condition? Are you receiving specialized treatment? Are you being moved frequently so as to avoid bedsores? Are you receiving personal attention to your clothing, your personal hygiene and other personal care needs? In short, is your quality of life as high as possible for you?

Your Agent should also be willing to become knowledgeable about your condition, proposed treatment, contemplated tests, and future needs. Perhaps your Agent should meet with you and your doctor periodically to discuss your wishes and future needs.

Asset Management Plan: Paying your bills may be an easy task for some, but difficult for others. Reviewing your needs and how to pay for them today and during the coming months or years, may not be an easy task for everyone. Will your designated agent seek sound professional advice or assistance in deciding whether to invest your funds in the market, T-Bills, or an annuity? It will be important for the person you have directed to care for your financial health to understand that the funds are yours, to be used for your care, and not protecting his or her inheritance!

Consult with Your Physician: Your Agent should consult periodically with your physician about your health, recent visits, his or her concerns, diet, exercise or loss of weight. If hospitalized and whether or not you have lost capacity, you and your Agent may wish your chart to reflect that no tests are to be performed unless and until your Agent has discussed those tests, including the procedure, and the benefit with you or your physician.

Consult with Your Financial or Tax Professional: Certainly your Agent has a duty to make certain your investments are diversified and sound. As a fiduciary, your Agent has a higher standard of care for investment and tax returns than he or she may use personally.

Your Advocate: This is an important task of being your advocate. Regardless of your Agent's personal beliefs, your Agent must be willing to follow your instructions and wishes and then make certain that the physician and staff are doing the same. Your Health Care Agent must be a strong and caring individual.

Family or Friend: Typically, spouses choose each other to be their first named Attorney In Fact.

However, it is also important, when possible, to name at least one alternate. For example, who would make your health care decisions if both you and your spouse were ill? Depending on your situation and wishes, you need not name your spouse; you are free to designate any family member or trusted friend.

The same is true for asset management. For example: Spouses may give blanket authority to a spouse, but impose restrictions when someone else is to serve. Your document may direct that steps be taken to protect your spouse by making gifts to the spouse in the event of catastrophic illness. However, if you are a single individual, you may not want your estate given away but rather used to pay for the cost of your care.

How Many: You also have the option of designating more than one person to act as Co-Attorneys In Fact. This may be appropriate where appropriate individuals travel or may not always available in an emergency.

Designating Co-Attorneys In Fact means that you must decide if there should be other instructions to your health care provider. For example: What if your Agents do not agree on a particular decision or course of treatment?

In the event Co-Attorneys In Fact are to make investment decisions or pay bills, is it necessary to direct who has the last word?

Summary
Of course, each person’s situation is unique. So should your documents also be unique and based on your needs. Please call on us to help you review your current documents and prepare a plan to assist you in the future.

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