Two essential proxies

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There are two key estate planning documents, both called powers of attorney, that can potentially be of great importance not only to business people, but also to many other readers of this column. I suspect some readers will already know everything they need to know about proxies, but others won’t. In future columns, I will address in more detail the issues relevant to the understanding of each of these documents. But here are, briefly, the basics you need to know about them.

■ A Power of Attorney is not really a “power of attorney”: rather, it is a document that gives the right (i.e. a “power of attorney”) to act on your behalf to someone you designate as your “attorney”. You must sign the document, and it must also be signed by certain other people. However, despite the implications of the term “lawyer”, the person or persons you name in a power of attorney do not have to be lawyers; this can be any adult whom you deeply trust and wish to appoint as your agents, that is, people who have the legal right to act on your behalf. Thus, in the rest of this column, the word “lawyer” will mean “agent”. For the sake of brevity, I will assume for the rest of this article that you will name only one person as your proxy in a power of attorney document; but you may want to name two or more people.

■ The first type of power of attorney is usually called a power of attorney for health care. This document authorizes your attorney to make decisions about your health care that doctors or other health care providers must follow if, because you are anesthetized, in a coma, or for other reasons, you cannot even make those decisions. If your power of attorney says so, your attorney under your health care power of attorney can even decide whether or not your health care providers should provide you with the extraordinary medical care needed to prolong your life.

If you have an estate plan that includes a document called a living will, this living will will normally outline your intentions regarding your end-of-life care. However, even if you have such a document, you will also need to have a power of attorney for health care to ensure that your wishes regarding end-of-life care are implemented by your health care providers if you yourself cannot express these wishes.

If you are married, your healthcare 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 may also include close friends.

■But of course, you must ensure beforehand that your representatives, whoever they may be, will have access if necessary to the original of your medical power of attorney, signed by you and the required witnesses.

■ The second type of power of attorney in estate planning is generally called a financial power of attorney. As the name suggests, this document gives your lawyer 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 give your Power of Attorney the right to handle many or all other types of non-health care matters important to you. These may include, for example, running your business if you own it.

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

John Cunningham is an attorney licensed to practice law in New Hampshire and Massachusetts. He is legal counsel for the law firm McLane Middleton, PA. Contact him at 856-7172 or [email protected] His website is llc199a.com. To access all of his Law in the Marketplace columns, visit concordmonitor.com.

Law in the Marketplace is a legal advice section. It airs weekly in the Sunday Business section. The author is a lawyer at Concord and is not a staff member of the Monitor.

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