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Planning for Incapacity

What is a Durable Power of Attorney?

Who can create a Power of Attorney?

Who may act as an agent under a Power of Attorney?

How does an agent use a Power of Attorney?

What is a Durable Power of Attorney for Health Care?

What is a Living Will?

What is a HIPAA Authorization?





Q: What is a Durable Power of Attorney?

 A Durable Power of Attorney names an Agent to carry on your property and financial affairs in the event that you become disabled. Unless you have a properly drafted power of attorney, it may be necessary to apply to a court to have a Guardian or Conservator appointed to make decisions for you when you are disabled.  This guardianship process is expensive, time-consuming, and emotionally draining for the family.


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Q: Who can create a Power of Attorney?

Generally, any individual who has attained 18 years of age who is legally competent can create a power of attorney.


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Q: Who may act as an agent under a Power of Attorney?


Anyone who is legally competent and has attained 18 years of age can be designated your Agent. Agents often are a spouse or domestic partner, a parent or sibling or adult child, or some other trusted family member or friend. It is prudent to name an alternate Agent, in the event your first choice no longer is able or willing to serve. Sometimes multiple or co-Agents are named. Appropriate provisions for Agents or other fiduciaries are an important part of the estate planning design process.


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Q: How does an agent use a Power of Attorney?

Your Agent presents the original power of attorney document to the other party involved in the transaction and signs documents on your behalf.  Your agent signs his or her own name, followed by the words "Agent for John Smith" or "Attorney in Fact for John Smith”.


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Q: What is a Durable Power of Attorney for Health Care?

You also may create a Durable Power of Attorney for Health Care to appoint someone you trust to make health care decisions for you if you are no longer able to make them yourself. You may give your health care Agent detailed instructions to follow with respect to various situations or treatments. Your Agent can then ensure that health care professionals follow your wishes.  Hospitals, doctors and other health care providers must follow your Agent's decisions as if they were your own.


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Q: What is a Living Will?

A Living Will informs others of your wishes regarding "pulling the plug" should you become terminally ill or permanently unconscious. Almost all states have instituted living will laws to protect a patient's right to refuse medical treatment.  Even if you receive medical care in a state without living will laws, this document is useful to a court trying to decide what an incapacitated patient would want. In conjunction with other estate planning tools, it can bring peace of mind and security while avoiding unnecessary expense and delay in the event of future incapacity. 


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Q: What is a HIPAA Authorization?

The 1996 Health Insurance Portability and Accountability Act, or HIPAA, prohibits the release of your protected medical information to anyone unless authorized by you or by law. It therefore is advisable to have a comprehensive HIPAA Authorization Form that allows the release of such information to your Agents, your successor Trustees, your close family members and perhaps other people.


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Ward Legal Group PC is an estate planning and elder law firm serving all of New Hampshire and Vermont, including Keene and the nearby areas of Peterborough, Walpole, Brattleboro, Wilmington and Bellows Falls.

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