The Importance of a Health Care Proxy and Durable Power of Attorney

One misconception I hear a lot from younger folks I meet is they think they don’t need a will because they’re young and healthy. While they should still have a will because, well, the unexpected happens, a health care proxy and durable power of attorney are arguably more important documents.

While a will can make things easier for your family if you unexpectedly pass away, a durable power of attorney and health care proxy are arguably more important because these documents are activated when you’re still alive.

I often encourage folks to look at it this way: Do you have health insurance, car insurance, renter’s or homeowner’s insurance? Chances are you do.

Well, a health care proxy and durable power of attorney are akin to legal insurance in the event you become incapacitated, whether in a car or bike accident, illness, or even a strong allergic reaction.

Every competent adult has the right to appoint a health care agent, which agent can step in in the event an attending physician determines the person lacks the capacity to make or communicate health care decisions. Without a health care proxy in place, the hospital might have to retain an attorney to petition for guardianship of the person through the probate court. Depending on the type of treatment sought by the hospital, the incapacitated person will be appointed an attorney by the court. This could essentially result in strangers litigating one’s health care matters in open court.

Similarly, a person can designate an agent in a durable power of attorney, called an attorney-in-fact, to act for the person’s benefit in financial and legal matters in the event the person becomes disabled or incapacitated. A durable power of attorney document can be quite limited or very broad. The durable power of attorney can ensure continuity in paying bills and handling personal business, as well as assisting with planning and preventing loss of funds. Like the health care proxy above, it can avoid the need to go to court for appointment of a guardian or conservator.

I draft health care proxies and durable powers of attorney as part of a “core” estate plan. I also include HIPAA authorizations in both documents because if you want your health care providers to share information with your loved ones, providing advance permission can make the process much smoother.

Call my office today at 617-702-2449 to schedule a consultation. I’d be happy to talk with you about getting your planning in order.