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Planning for Incapacity

What is a Durable Power of Attorney?

Who can create a Power of Attorney?

Who may act as an agent under a Power of Attorney?

How does an agent use a Power of Attorney?

What is a Durable Power of Attorney for Health Care?

What is a Living Will?

What is an Advance Health Care Directive?

What is a HIPAA Authorization?





Q: What is a Durable Power of Attorney?

A durable power of attorney allows you to name another person or persons to sign your name and perform acts on your behalf.  This person is called your "agent" or "attorney-in-fact."  Examples of acts your agent may perform include accessing your bank accounts, paying bills, managing investments, and selling real estate.  Without a properly drafted power of attorney, it may be necessary to apply to a court to have a guardian or conservator appointed to make decisions for you should you become disabled.  The guardianship process can be time-consuming, expensive, and emotionally draining.

The durable power of attorney is usually effective upon signing,  although some (known as a "springing" power) may become effective at a later specified date or upon a certain event.  All powers cease upon death or by revocation during lifetime.


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Q: Who can create a Power of Attorney?

Generally, any individual over 18 years of age who is a resident of the state in which it is created and who is legally competent can create a power of attorney.


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Q: Who may act as an agent under a Power of Attorney?

In general, an agent may be anyone who is legally competent and over the age of 18.  Often, it is a family member such as a spouse, sibling, or a child.  


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Q: How does an agent use a Power of Attorney?

Your agent presents the fully-executed power of attorney document to the other party involved in the transaction and signs documents on your behalf.   Your agent signs his or her own name, followed by the words "Attorney in Fact for Bob Jones”.


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Q: What is a Durable Power of Attorney for Health Care?

Prior to 2006, Vermont law allowed you to appoint a medical agent using a Durable Power of Attorney for Health Care.  Although some of these documents may still be valid, our current law provides for execution of an Advance Health Care Directive.


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Q: What is a Living Will?

A Living Will informs others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding treatment.  Many states have instituted living will laws to protect a patient's right to refuse medical treatment.  Even if you receive medical care in a state without living will laws this document is useful to a court trying to decide what an unconscious patient would want.  In conjunction with other estate planning tools, it can bring peace of mind and security while avoiding unnecessary expense and delay in the event of future incapacity.


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Q: What is an Advance Health Care Directive?

In 2006, an Advance Health Care Directive took the place of two older documents, a Durable Power of Attorney for Health Care and a Living Will.  It incorporates the provisions of those two documents and is a more powerful document than the old Durable Power of Attorney for Health Care.  It allows you to appoint someone, called your "health care agent," to make health care decisions if you are unable to do so.  It also permits you to outline certain medical instructions such as life-sustaining treatment, anatomical gifts, and disposition of remains.  Your agents can insure that health care professionals provide care for you in accordance with your wishes.


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Q: What is a HIPAA Authorization?

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) contains privacy regulations which require virtually every health care provider to limit access to confidential medical records and information, regardless of one’s state of health.  In order for your family members, friends, and/or designated health care agents to obtain individually-identifiable health information about you, you must specifically authorize disclosure and release of the information in writing.  With this form, health care providers are expressly authorized to answer questions posed by the designees and openly discuss your condition, treatment, test results, prognosis, and all other information pertinent to your health care, even if you are fully competent to ask questions and discuss your medical condition.  


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