AHCD DPOAs and Covid 19

A young, unmarried couple with a toddler signed simple “do-it-yourself” wills that nominate guardians and name the toddler as their beneficiary. Two years pass. The COVID 19 pandemic arrives and the father, an orthopedic surgeon, is reassigned to his hospital’s emergency room. He eventually becomes ill and is placed on a ventilator. He cannot make his own medical or financial decisions, but his significant other lacks the authority to act on his behalf.

Like many people, this couple overlooked incapacity planning. Any disease or accident can lead to temporary or permanent incapacity. If one becomes incapacitated and does not have the right legal documents in place, no one can legally make health care and financial decisions for that person. What can you do to avoid this scenario?

Durable Financial Power of Attorney

A durable financial power of attorney (DPA) permits the signer, known as the principal, to designate a person or financial institution as the principal’s attorney-in-fact. An attorney-in-fact is also known as an agent. The DPA enables the agent to manage the principal’s financial matters when the principal becomes incapacitated. The attorney-in-fact has only the powers that the principal grants in the document. An agent can exercise authority when the principal becomes incapacitated or immediately upon your signing.

Advance Health Care Directive

An advance health care directive includes both an “individual health care instruction” and a “power of attorney for health care.” In the latter, you authorize a named individual to be your advocate and make health care decisions for you if you are unable to do so. In the former, you state your wishes concerning medical treatment and end-of-life care.

Without a durable power of attorney or an advance health care directive, the only way for someone to obtain legal authority to act on behalf of an incapacitated person is to petition the court to be appointed conservator. A court proceeding results in unnecessary time delays and costs, which can make an emergency situation even more difficult.

Creating Durable Powers of Attorney and Advance Health Care Directives in California

California has a statutory power of attorney form and a statutory advance health care directive form. While both appear straightforward, an attorney can raise questions or scenarios one may not have considered. In addition, to be valid, a power of attorney and an advance health care directive must be either acknowledged before a notary public or signed by at least two witnesses. This requirement will not prevent signing these documents while Sheltering in Place. Mobile notaries are available, and estate planning firms including HBH have developed procedures to safely sign and notarize documents.

Please feel free to call HBH with any questions you may have.