What is a medical power of attorney?
A power of attorney is a document whereby one person (the principal) designates another person (the agent) to make decisions on behalf of the principal. A medical power of attorney and a durable power of attorney are frequently used in estate planning.
A medical power of attorney allows the principal to appoint an agent, and usually an alternate or back-up agent, to make health-care decisions when the principal is unable to make those decisions for himself. The agent may exercise his authority only if the principal’s physician certifies that the principal lacks the mental capacity to make health-care decisions for himself. The principal can revoke the medical power of attorney at any time, either verbally or in writing, and regardless of his mental state. The medical power of attorney must be signed by two witnesses or in the presence of a notary public. If two witnesses are used, one of the witnesses cannot (a) be named as the agent; (b) be related to the principal either by blood or marriage; (c) be an employee of the principal’s health care facility who provides direct care to the principal or who is involved in the financial affairs of the health-care facility; (d) be the principal’s attending physician or an employee of the physician; (e) be an heir of the principal; or (f) be a person who would have a claim against the principal’s estate upon the death of the principal.
A statutory durable power of attorney allows a principal to appoint an agent, and usually an alternate or back-up agent, to make decisions for and on behalf of the principal concerning the management of the principal’s property. The statutory durable power of attorney allows the principal to give the agent either all of the powers listed in the power of attorney or only some of the powers. The durable power of attorney must be signed by the principal before a notary public, but it does not require any witness. It is recommended that the durable power of attorney be recorded with the county clerk in the county where the principal resides. Be aware that not all financial institutions will honor an otherwise valid and legal statutory durable power of attorney claiming that they do not have to honor the instrument if it wasn’t signed in the presence of an officer of the financial institution.
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