Law in the Marketplace: Two key powers of attorney

  • John Cunningham

For the Monitor 
Published: 7/30/2022 4:03:12 PM
Modified: 7/30/2022 4:00:02 PM

There are two key estate planning documents, both of which are called powers of attorney, that can be of potentially great importance not only to businesspeople but also to many other readers of this column. I suspect that some readers will already know all they need to know about powers of attorney, but some may not. In future columns, I will discuss in greater detail the issues relevant to understanding each of these documents. But here, briefly, are the basics you need to know about them.

■A power of attorney is not actually a “power”: Rather, it is a document that gives the right (i.e., a “power”) to act on your behalf to a person whom you name as your “attorney.” You must sign the document, and it must also be signed by certain other persons. However, despite the implications of the term “attorney,” the person or persons whom you appoint in a power of attorney don’t have to be lawyers; they can include any adults whom you deeply trust and whom you want to appoint as your agents — i.e., as persons with a legal right to act on your behalf. Thus, in the rest of this column, the word “attorney” will mean “agent.” For brevity, I’ll assume in the rest of this column that you will only appoint one person as your attorney in a power of attorney document; but you may well want to appoint two or more persons.

■ The first main type of power of attorney is usually called a health care power of attorney. This document authorizes your attorney to make decisions about your health care that doctors or other health care providers must comply with if, because you are anesthetized, in a coma or for other reasons, you yourself can’t make these decisions. If your power of attorney so provides, your attorney under your health care power of attorney can even decide whether your health care providers should or shouldn’t provide you with extraordinary medical care necessary to extend your life.

If you have an estate plan that includes a document called a “living will,” this living will will normally set forth your intentions about your end-of-life care. However, even if you do have such a document, it will be necessary for you to also have a health care power of attorney in order to ensure that your wishes about end-of-life care are implemented by your health care providers if you yourself cannot express these wishes.

If you are married, your health care attorneys will normally be your spouse and possibly one or more other close relatives; if you are single, your attorneys will normally be one or more of these relatives, but they may also include close friends.

■But of course you must make advance arrangements to ensure that your attorneys, whoever they may be, will, in the event of need, have access to an original version of your health care power of attorney, signed by you and the required witnesses.

■The second main type of estate planning power of attorney is usually called a financial power of attorney. As its name implies, this document provides your attorney with the right to manage your financial affairs if you are unable to do so. However, if your financial power of attorney so provides, it will also provide your attorney with the right to handle many or all other types of non-health care matters important to you. These may include, for example, the management of your business if you own one.

■Whether you are married or single, your financial power of attorney may well appoint as your attorney the same person as appointed under your health care power of attorney. However, you may want to appoint as your financial attorney a person whom you not only deeply trust but who is also reasonably knowledgeable about the financial and business matters relevant to you.

John Cunningham is a lawyer licensed to practice law in New Hampshire and Massachusetts. He is of counsel to the law firm of McLane Middleton, P.A. Contact him at 856-7172 or lawjmc@comcast.net. His website is llc199a.com. For access to all of his Law in the Marketplace columns, visit concordmonitor.com.

Law in the Marketplace is a legal advice column. It runs every week in the Sunday Business section. The author is a lawyer in Concord and not a member of the Monitor’s staff.




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