With age comes the probability of an individual suffering an unfortunate disability that may render that person legally incapacitated. To address this concern, a person can sign a Durable Power of Attorney, authorizing an individual other than themselves to make financial decisions.

To qualify as a Durable Power of Attorney the document must have specific language which states that you intend for the authority of the Durable Power of Attorney to continue while you are legally incapacitated. Such language is required by Michigan law. This is also what makes it "durable" and what differentiates it from a regular Power of Attorney. You must be legally competent to sign either form of Power of Attorney.

A Durable Power of Attorney can begin when you sign it or it can be triggered into affect at a later date, or under certain circumstances as stated by you. If it takes affect at a later date or at the time of your stated circumstance, it's called a "springing" Power of Attorney; it springs into affect later.

Health Care Power of Attorney

As with planning for authority over finances, planning may also be made for the possibility of health care needs or living arrangements should a person become incapable of giving direction. Again, a clear understanding of what legal arrangements are available and when they are useful allows you to keep control of these choices as much as possible.

While a Durable Power of Attorney is needed to give your agent authority to make financial decisions, a Health Care Power of Attorney is needed to give another person authority to make health care choices for you. The Health Care Power of Attorney, like the Durable Power of Attorney, is authorized by Michigan law and, when properly completed, the patient advocate (the appointed person) speaks for you when you are not able to communicate your own wishes.

A patient advocate only has the authority to act for you while you are unable to communicate. If you get better, their authority ends. Further, the patient advocate does not have the authority to end medical treatment if it is likely to cause your death unless you have specifically given the patient advocate the authority to also make life and death decisions for you. This must be spelled out in your Health Care Power of Attorney. It is important to know some of the details of properly filling out a Health Care Power of Attorney.

·          You must understand the form you are signing;

·          Your signature must be witnessed by at least two other adults.

Certain people are not allowed to be a witness to your Health Care Power of Attorney because of the possible conflict of interest they may have. Your spouse, child, grandchild, brother, sister, parent, possible heir, person benefiting from your will, your doctor, the person you are appointing patient advocate in the document, an employee of your life insurance, health insurance or the medical facility where you are staying, cannot be a valid witness to your Health Care Power of Attorney.

Many hospitals provide Health Care Power of Attorney forms at no charge. You can also obtain a form free of charge in a booklet with helpful information by calling your state senator or representative. After you sign it, give a copy to your doctor and other regular medical providers.

Excerpted with permission from Advancing Smartly:  A Legal Handbook for Michigan Women Age 60+. Published by Elder Law of Michigan