Power of Attorney
A Power of Attorney is a legal document which delegates the power to
make property, financial and/or legal decisions from one person to
another. The person who makes the Power of Attorney is called
the maker or principal, and the person who receives the stated
powers is called the agent or "attorney-in-fact". Typically, a
Power of Attorney is used when the maker cannot be present to sign
necessary legal documents and/or make certain decisions, or when the
maker is unable to make the decisions because of some mental or
physical disability.
If the Power of Attorney gives broad authority to the
"attorney-in-fact", then the Power of Attorney is called a "General"
Power of Attorney. If the Power of Attorney gives limited
authority (where the authorized acts are specifically defined), then
the Power of Attorney is called a "Limited" Power of Attorney.
A "Non-durable" Power of Attorney is effective as soon as it is
signed by the maker, and terminates if the maker becomes mentally
incapacitated or dies. A "Durable" Power of Attorney is also
effective as soon as it is signed by the maker. But unlike a
"Non-durable" Power of Attorney, the "Durable" Power of Attorney
continues even after the maker becomes mentally disabled.
People should be aware, however, that under both a "Non-durable"
Power of Attorney and a "Durable" Power of Attorney, the
"attorney-in-fact" can make property, financial and/or legal
decisions for the maker as soon as the Power of Attorney is signed,
even if the maker is present and mentally able to make his or her
own decisions.
A "Springing" Power of Attorney becomes effective
at a future time or when a future event occurs, such as the maker's
mental disability or illness. Typically, a "Springing" Power
of Attorney will provide that it "springs" into action when someone
determines the maker to be mentally disabled. So, the maker
controls his or her own financial affairs while he or she is
mentally competent, but is assured that his or her financial affairs
will be managed if he or she becomes mentally disabled.
However, one of the serious dangers of a "Springing" Power of
Attorney is that the definition of maker's mental disability and/or
the definition of who makes that determination is not clearly
stated.
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Living Will
A Living Will is essentially a document whereby an individual sets
forth in writing his or her desire not to be supported by unnatural
extraordinary means. For example, if a person’s death is
imminent but for the use of respirators, feeding tubes, etc., his or
her substitute decision maker, as designated in the Health Care
Proxy, would have the power to instruct the doctors to terminate
their efforts.
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Health Care Proxy
The Health Care Proxy designates an agent to make health care
decisions for the maker (in the event the maker is not mentally able
to make those decisions for himself or herself). Also, the
agent is designated to represent the maker's wishes, as set forth in
the Living Will, with respect to the use of unnatural extraordinary
means.
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