Power of Attorney for Personal Care

I. Power of Attorney for Personal Care: What is it?

A Power of Attorney for Personal Care is a legal estate planning document which appoints an individual with decision making power to be exercised over matters concerning personal care in the event that the party granting the power of attorney is unable to do so. Personal care includes, amongst other things, heath care, medical treatment, diet, shelter etc. Attorneys for Personal Care tend to be a spouse, child (provided child is at least sixteen [16] years of age), other relative or close friend of the party granting the power.

II. The Importance of a POA for Care

The importance of the POA for Care in the overall estate plan cannot be overstated. Death, albeit a certainty, does not always come before loss of mental capacity. Absent a POA for Care, one’s personal care directive would remain unknown and subject to speculation by competing interests and even possible Court scrutiny and judgement. A POA for Care will accordingly constitute that grantor’s express instructions in so far as the person(s) responsible for making health care decisions as well as any specific instructions respecting the desired health care itself.

III. Requirements of a POA for Care

The POA for Care must be in writing and signed by the grantor and to be witnessed by two (2) individuals. The two (2) witnesses must both be physically present when the grantor signs the POA for Care. Ineligible witnesses are the appointed attorney and substitute attorney(s), the attorney’s spouse or partner, the grantor’s spouse or partner, the grantor’s child, and any minor under the age of eighteen (18) years old.

IV. Recommendations

Because of the undeniable importance of the POA for Care to the overall estate plan and especially given the potential for the directive to give rise to an onerous mandate, it is important to not only select a trustworthy individual to serve as attorney but someone who is furthermore up to the task. If naming more than one person as attorney, be sure to specify whether the named attorneys are required to act jointly or whether the appointment will permit for joint and several representation by the attorneys. It is moreover recommended that alternate attorneys be names in order to effectively address the situation which may arise where the principal named attorney(s) are unable or unwilling to act.

Finally, and since the POA for Care directive is the grantor’s opportunity to specify a health care plan to be followed in the event of the grantor’s inability to him/herself make such wishes known at the future relevant time, it is recommended that as much detail as possible respecting those wishes or plan be provided. As an example, it would be wise to make clear the desire to not be kept on life support in the event that there exists no reasonable expectation of recovery from extreme physical or mental disability. Absent clear language providing such unequivocal instructions, one cannot and should not expect that one’s attorney will not attempt to take heroic steps to prolong a guarantor’s life in such circumstances.

Legal counsel should be consulted in order to ensure that the POA for Care is properly prepared and consists entirely of the intended health care directive in a legally compliant manner.