Why You Need a Durable Power of Attorney

By: Mark G. Duncan

    I remember as a young boy witnessing the painful final years of my grandfather’s life.  At 52, he had been stricken with amyotrophic lateral sclerosis, commonly known as Lou Gehrig’s Disease, a progressive wasting away of nerve cells in the brain and spinal column that control the voluntary muscles that allow movement.  Lou Gehrig, known as the Iron Man of baseball, was dead within two years of immortalizing his famous “luckiest man” speech that would become baseball’s Gettysburg Address, when the world learned of his illness.  By sheer determination, if not stubbornness, my grandfather lived for nine years with the disease as his doctors repeatedly shrugged as to what was keeping him alive.  I remember him unable to lift his head, unable to speak understandably, unable to feed himself, unable to sign his own name.  This was once a strong and vibrant man, I was told, and I have heard many rich and colorful stories of him over the years.  But all I remember of him was his infirmity, and the helplessness spawned by the harsh hand suddenly dealt him in his middle age years.

    The life-changing effects of disability and its practical burdens can be far reaching, particularly when the disability involves loss of cognitive function.  Issues are destined to arise concerning personal decisions for the disabled individual and the management of his or her affairs.  Bills must be paid, bank accounts may need to be accessed, IRS issues may need to be ironed out, and the individual’s assets may need to be managed or transferred.  More importantly, health and long term care decisions may be required, and possibly the consent to or refusal of available medical treatment.  It is best to be prepared beforehand, and a durable power of attorney, signed while the individual is healthy and competent, is an inexpensive, effective tool to minimize the legal challenges and burdens that arise with disability.  Without it, it may become necessary to involve a court in an interdiction proceeding to appoint a curator, who is granted authority by the court to act on behalf of the disabled person.  By its nature, an interdiction proceeding can be costly and time-consuming, and holds the potential to create needless division and conflict among family members and loved ones.

    In general terms, a power of attorney is a document whereby one person, known as the principal, empowers another person or entity, known as the agent or “attorney in fact”, to act on the principal’s behalf.  A power of attorney is often used in real estate transactions where a party is unable or does not wish to appear at the act of sale, and specifically authorizes another to appear and sign all necessary closing documents on his or her behalf to effectuate the sale.  In Louisiana, powers of attorney are deemed “durable,” unless their scope is limited to a specific time frame or event. Durable means that the power of attorney is not terminated by the principal’s incapacity, disability or other condition that makes it impossible or impractical for the principal to revoke the agent’s power.  The power of attorney thus lives on and remains effective after the principal’s disability.

    For these reasons, a durable power of attorney should be considered as a vital component of basic estate planning.  By authorizing someone to act in the individual’s best interest, a durable power of attorney allows for the effective management and handling of the many decisions and tasks that must be performed when a person becomes disabled.  Its flexibility allows the principal to either grant a broad array of powers to handle financial, business, personal and health care decisions, or the authority may be limited to specific designated tasks.  For my grandfather, a durable power of attorney limited to bank access, bill payments and other routine tasks would have served him well, as his cognitive function and his ability to make decisions were generally spared from the disease.  A power of attorney may be effective immediately or deferred to a time when the principal becomes incapable of making the designated decisions.  The authority may likewise be defined to cover a specific duration or to last indefinitely.

    Perhaps the greatest utility of a durable power of attorney is the agent’s authority to handle health care decisions in the event the principal is unable to do so.  A health care power of attorney is not the same as a “living will.”   A living will expresses one’s intent as to whether life sustaining procedures should be administered or withheld in the very limited circumstances where the patient has a “terminal and irreversible” condition, such as a coma with no reasonable chance of recovery or a vegetative state.  Powers granted under a health care power of attorney apply in much broader situations.  In cases of Alzheimer’s disease, dementia or stroke, for example, a person may be functional to some degree but not competent to make health care decisions.  In those circumstances, a health care power of attorney can authorize the agent to make decisions regarding admission to a health care facility or nursing home, to obtain and review protected health information and consult with the principal’s doctors, including consent or refusal of medical treatment.  The agent’s ability to obtain and review protected health information is a significant one in view of legislation relating to privacy of health information under the Health Insurance Portability and Accountability Act of 1996, commonly known as HIPAA.  A properly drafted health care power of attorney which expressly designates the agent as the principal’s “personal representative” under HIPAA allows the agent to step into the shoes of the disabled person and make informed health care decisions, while avoiding any regulatory problems associated with protected health information.

    Nothing can ever fully prepare us for the potentially drastic and often devastating effects of disability, but you can minimize the practical and administrative burdens that arise when one becomes disabled through the simple, inexpensive means of a durable power of attorney.  As with all important legal matters, you should seek the advice of an experienced attorney to understand the advantages and disadvantages of a durable power of attorney and other estate planning tools, and determine what is appropriate for you.

Mark G. Duncan is a member of the law firm of Davis & Duncan, LLC, with offices at 849 Galvez Street in Mandeville.  He is a member of the Louisiana State Bar Association and Association of the Bar of the City of New York, having practiced in Louisiana and New York City for over 19 years.  He can be reached at (985) 626-5770 or (504) 559-1444.

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