How to Get What You Want

by Mark A. Krohn, Esq., Partner
Jacobowitz & Gubits, LLP

You can take legal steps to ensure that matters that are of concern to you will be properly handled in the event you become incapacitated.

What is a Health Care Proxy?
A Health Care Proxy will authorize the agent you designate to make medical decisions for you in the event you become unable to do so for yourself. You should also name an alternate agent to act in the event your “primary” agent is unable to act. You can always change or revoke the Proxy at any time, as long as you have legal capacity. Give copies of your Heath Care Proxy to your health care agent, alternate agent, doctor, health plan representatives and family. If you are admitted to a hospital or nursing home, take a copy with you.

What is Legal Capacity?
You must be able to understand the nature and consequences of your actions before you are allowed to consent to medical treatment or legally contract with someone. This is sometimes referred to as having legal capacity. If you lose such capacity, you will not be able to take important actions unless you have executed a Durable Power of Attorney or, if you do not have a Power of Attorney, unless a court appoints a Guardian.

What is a Power of Attorney?
A Power of Attorney gives another the right and authority to act on your behalf. In the event you become incapacitated that authority will end unless you execute a durable Power of Attorney. A Durable Power of Attorney remains in effect even if you are unable to handle your own affairs. Your Power of Attorney can authorize your agent to pay your bills, which is safer than adding him or her to your bank account. Your Power of Attorney can also authorize your agent to handle most of your affairs. The Power of Attorney is valid only during your lifetime. This is why you also need a Will. Ensure that you understand all of the terms of your Power of Attorney before signing, and be certain that your chosen agent is both capable and trustworthy.

What is a Guardian?
A Guardian is someone appointed by a court to manage your affairs in the event you become incapacitated, or are unable to feed or dress yourself, handle your finances or become feeble-minded. Your Guardian may be a family member, friend, or someone appointed by the court to act on your behalf. Unlike an agent acting pursuant to a Power of Appointment, a Guardian will receive court supervision concerning the handling of your affairs. Be aware that a Guardian is entitled to a fee which will be paid out of your funds.

What is a Living Will?
A Living Will is a legal document stating that you do not want life-sustaining treatment if you become terminally ill or permanently unconscious. This document is not to be confused with the “Living Trust”, which serves a different purpose.

Upon my death, does my Last Will and Testament govern all my property?

No. A Will does not control the distribution of life insurance proceeds, retirement plan assets, jointly owned assets, or trust assets.

I recommend that you contact an Elder Law or Estate Planning Attorney for assistance in obtaining a Durable Power of Attorney, Heath Care Proxy, Living Will, and Will. It is crucial that your documents are properly prepared if you wish to ensure that your affairs will be handled properly either during incapacity or after death.