Health Care Power of Attorney

Health Care Powers of Attorney

Recently, after running with some friends and while enjoying our customary cool-down beer (a must for summer running – after you rehydrate with water or a sports drink of course) a friend asked me about health care powers of attorney and whether he should get one.  Obviously, this individual had not read my August 31, 2011 post.  After explaining to him the benefits of executing a health care power of attorney and how it differs from a living will (discussed below), I asked the group how many had executed one.  Only a few raised their hands.  Sadly, this did not surprise me.

A Health Care Power of Attorney (“HCPOA”) is a document which allows an individual (the “Principal”) to appoint another individual (a “Health Care Agent” or “Agent”) to make health care decisions on the Principal’s behalf in the event the Principal is unable to do so.  A HCPOA is different from a Living Will because of the appointment of an Agent, whereas a Living Will actually sets forth an individual’s health care wishes.  Anyone over the age of 18 and “of sound mind” may execute a HCPOA.  An Agent may be anyone except a Principal’s health care provider or an employee of a health care facility at which the Principal is residing, unless that Agent is related to the Principal.   A HCPOA is not effective immediately, but only upon a finding of incapacity by two physicians.

Generally, an Agent is granted the authority to make any decision that a Principal could make for themselves.  There are few limitations to this authority, some created by statute and others drafted into the HCPOA.  Given the broad decision-making powers, it is vitally important that the Principal and Agent thoroughly discuss the Principal’s desires for treatment (more on this in a future blog post).  So long as the Agent acts in good faith and consistent with the desires of the Principal, the Agent is allowed to consult with the Principal’s doctors and make health care decisions for the Principal’s benefit.

Once executed, I provide a Principal with several copies of their HCPOA and advise them to keep a copy with their other estate planning documents.  By law, a photocopy of an HCPOA is just as effective as the original signed copy.  The additional copies should be provided to the Agent, the secondary Agent (if named) and the Principal’s primary physician.

A HCPOA may be revoked at any time through any of the methods listed in Wis. Stat. § 155.40, including by obliterating it – one of my favorite actually legal words.  If not revoked, a HCPOA is effective for the entire life of the Principal (there is no expiration date), however, HCPOAs should be reviewed from time to time and revised upon the occurrence of major life events (marriage, divorce, death of an agent, etc.).

If you would like to discuss the benefits of a HCPOA, feel free to contact one of our estate planning attorneys at (608) 837-7386 (we won’t even make you run with us first).

Disclaimer:  Please note that reading and/or commenting on this blog post does not create an attorney-client relationship with Eustice, Laffey, Sebranek & Auby, S.C. absent an express agreement between the firm and the client.  Contacting Eustice, Laffey, Sebranek & Auby, S.C. or any of its attorneys or employees via this website or via email does not create an attorney-client relationship.

We would be pleased to communicate with you by email. However, please note that if you communicate with us-through this website, via email, or otherwise-in connection with a matter for which we do not already represent you, your communication may not be treated as privileged or confidential and may be disclosed to other persons..

Why Don’t Young Adults Estate Plan?

As a young lawyer, one of my main goals is to get out in the community and meet as many people as possible.  Given that I am 28 years old, my networking efforts typically involve people my own age.  After discovering that I am a lawyer in Sun Prairie and practice estate planning, the conversation almost always goes like this (NYP = Noncommittal Young Person):

NYP:     Estate planning…yeah, I looked at having a will and some other documents drafted a while back.  I really meant to get it done, but I never quite got there.  I really should.

Me:      Why didn’t you have them done?

NYP:     I don’t know, I was going to get it done but I got sidetracked / I didn’t really know the attorney / the form was really long / I forgot to call the attorney back / I was really busy with other things at the time / I didn’t want to think about it / I didn’t know who should take care of my kids, dog, etc. / I am not married or don’t have any kids / I was told that I didn’t need to do it and that the state would take care of me.

In my experience, most young people do not see the pressing need for executing estate planning documents.  They view estate planning as something their parents and grandparents should be worried about, not them.  They also don’t think they need to execute any documents unless they are married or have children.

These views are all false.  Everyone over the age of 18 should have a Will, Financial (Durable) Power of Attorney and Health Care Power of Attorney document in place.  End of story.  My reasoning for this is quite simply that accidents happen, even to us young people!  According to recent CDC data (the most recent available, as far as I could find, was for 2007) the single leading cause of death for individuals aged 25-45 was accidents (24%).  I will grant you that it is statistically unlikely that a young person will be affected by an accident.  However, if such an accident occurs and you have not executed these documents, then you are ceding your decision-making authority regarding your health treatment, finances, etc. to other people (judges, state-appointed social workers, etc.).  Nothing against these fine individuals, they are very good at what they do and they work very hard, but when you consider that the state procedures are already over-burdened, and are costly, stressful and time-consuming to families, all at a time when that family is already scrambling to get back on its feet, I hope it isn’t hard to see why being proactive and executing estate planning documents (and, thus, avoiding the majority of this hassle) is good advice.

Moral of the story: Accidents happen.  Even to young people.  You owe it to yourself and to your family to be proactive and get these documents in place.  If you would like to discuss your estate planning needs, please call (608) 837-7386 and one of our estate planning attorneys would be happy to assist you.

Disclaimer:  Please note that reading and/or commenting on this blog post does not create an attorney-client relationship with Eustice, Laffey, Sebranek & Auby, S.C. absent an express agreement between the firm and the client.  Contacting Eustice, Laffey, Sebranek & Auby, S.C. or any of its attorneys or employees via this website or via email does not create an attorney-client relationship.

We would be pleased to communicate with you by email. However, please note that if you communicate with us-through this website, via email, or otherwise-in connection with a matter for which we do not already represent you, your communication may not be treated as privileged or confidential and may be disclosed to other persons..