Cooler weather has come our way, as it does every year. Before many of us head to warmer regions, it is an important time to determine whether our basic legal documents are updated and accurate. All it takes is one accident or medical emergency while out-of-state in Arizona or Florida this winter for powers of attorney and living wills to pay for themselves.
People should consider having both a healthcare power of attorney and a financial power of attorney prepared and ready to be used at all times. These documents name someone other than yourself to make healthcare and financial, respectively, decisions for you if you cannot make those decisions yourself. In the context of powers of attorney, you are called the “principal,” and the party who can act for you is called the “agent.”
Generally, healthcare powers of attorney that have been prepared in the last several years are likely legally sufficient. Ohio-based forms for healthcare powers of attorney are available for free at many hospitals, doctor’s offices and nursing homes. Nonetheless, many attorneys will update and individualize healthcare powers of attorney when other advanced directive legal documents are prepared or updated for clients.
Financial powers of attorney typically need more attention and more frequent updates than healthcare powers of attorney. In fact, the law has changed in recent years. There are numerous, specific powers that must be included and stated precisely for the power of attorney document to effectively grant those powers. This is particularly the case for the portions of the financial power of attorney that deal with gifting assets and making a principal eligible for nursing home and other healthcare assistance (i.e. Medicaid).
If a person is some day not able to make his or her own healthcare and financial, respectively, decisions, and the person has not previously prepared valid powers of attorney, the only way that others (including spouses) can make decisions for the person who cannot make decisions is if the others become guardians over that person who cannot make their own decisions. Guardianships take significantly more time and money to undertake in contrast to powers of attorney, because it takes more time and money to set up and to continuously maintain guardianships, partly because guardianships include significant oversight from the local probate court.
People should also consider preparing a living will. A living will is not really like a will. A living will is a document within which a person decides in advance (while the person is competent) that if and when two doctors later conclude that the person is permanently unconscious and terminally ill, the doctors should remove the person’s IV for artificial hydration.
Powers of attorney and living wills are enforceable all over the country if the documents were properly prepared and signed in Ohio. Further, most attorneys can prepare powers of attorney and living wills within a few days for clients who are headed out of town, particularly for snowbirds this time of year. Peace of mind is a great thing to take with you this winter.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.