Medical Directives and Financial Powers of Attorney: Why Do I Need These?

Community Contributed

By Maria Sullivan, Attorney

Many of us have an aunty who suffered a stroke, then spent months in the hospital before she passed away.  Not only was it difficult for Aunty, but also for her family.  One of the many decisions that had to be made was about Aunty’s health care, because she couldn’t communicate who she wanted to carry out her medical wishes. Doctors spoke to the family and asked them to consider filing a Guardianship Court case, and the Court would determine who would make decisions for Aunty.  But if Aunty had signed an Advance Health Care Directive and Medical Power of Attorney (generally referred to as a Medical Directive), the decision making and entire medical process would have been easier for Aunty and for the family.

A Medical Directive designates a person (“agent”– often a family member) to make medical decisions on your behalf, if you are unable to do so.  The Medical Directive also states the circumstances under which the agent may act on your behalf.  The Medical Directive provides your instructions to medical providers and to your agent, as to end-of-life medical and custodial care issues, such as use of artificial respiration devices (such as a ventilator), invasive treatment, surgery, and tube feeding.  It can also include a power of attorney to handle insurance, medical bills, pharmacy and medical purchases. Some people refer to this Medical Directive as a “Living Will.”

In addition to a Medical Directive, it is important to have a General Durable Power of Attorney, in case you become ill or severely disabled.  A General Durable Power of Attorney allows a third party (such as a spouse, adult child or trusted friend or relative) to act on your behalf, primarily with respect to financial matters, which can include banking, real property sales and transfers, payment of bills, taxes and insurance.  The person you list to act on your should be someone you trust completely. The power of attorney can be effective now, or when you become disabled (a “Springing Power of Attorney.”)  Because the power to act continues although you are disabled it is called “durable.”

It is especially important that a single person (that is, a person who is unmarried, is a widow/widower, or is divorced) have a General Durable Power of Attorney, so that their affairs can be managed in case they become disabled, and to avoid the need for a formal Court Guardianship and/or a Court Conservatorship. A Guardianship is a Court supervised case that relates primarily to a disabled person’s well being such as where they live, or who is their caregiver.  A Conservatorship is a Court supervised case to manage the money and property of a disabled person, or to manage the money and property of a minor person (person under 18 years of age.)

Caring for a chronically ill or terminally ill family member is often an unexpected challenge. If you don’t have a Medical Directive or a Financial Power of Attorney, contact a lawyer to prepare these documents for you to make the process easier for family members if you become ill or disabled.

The information in this article is very general, and you should seek the advice of an attorney to discuss the particulars related to you and your family. Maria Sullivan has been an attorney since 1980, and lives and practices law on Molokai.  You may contact her at 553-5181 or mjs@aloha.net.