Why do you need a Medical Power of Attorney?

A Medical Power of Attorney is a legal document in which you give authority to someone to make medical decisions for you in the event you are unable to do so. This person is called a Patient Advocate. Michigan Law requires two doctors to state in writing that you are unable to make medical decisions before the Patient Advocate may make decisions. The decisions are all medical-related decisions - such as what drugs, what surgery, which hospital, which doctor, and the removal of life support.

Without a Medical Power of Attorney, a Guardian must be appointed by the Probate Court, based upon petitions filed by the family and the Guardian under Probate Court supervision. The Patient Advocate is not under Probate Court supervision and can make decisions without the Probate Judge being involved.

Most people believe a spouse has the right to make medical decisions for his/her spouse without a Power of Attorney. Without a Power of Attorney, a spouse does not have this authority. A child over 18 is an adult, and a parent does not have the right to make medical decisions for an adult child. When a child attains the age of 18, a Medical Power of Attorney should be considered to allow parents to make medical decisions without Probate Court involvement. Also, a step-parent cannot make medical decisions for a step-child. (See the question “When do I need a Temporary Guardian for a Minor” and the answer).

Who do you select to make your Medical Decisions?

The selection of the Patient Advocate is a very important decision. This person will make decisions regarding doctors, hospitals, drugs, surgery, and other decisions regarding the care of your person. The Patient Advocate also will make decisions regarding life support.

When clients ask for our advice regarding who they should appoint, we ask them to consider the following:

  • Select someone who can make the difficult decisions.
  • Usually only a family member will accept this appointment.
  • Select someone who has similar thoughts and beliefs regarding treatment and removal of life support.
  • Does someone in the family have medical experience, such as a job as a doctor, nurse, or other medical professional?

One last thing to consider - If you are in favor of having life support being removed, avoid appointing the “White Knight.” This generally is a family member who has not been involved with your care and generally lives some distance away from you. When you become ill, this is the person who, all of a sudden, feels guilty about their past inattentiveness and now tries to “make up” for it by being the person to “save your life”. This person generally will block the removal of life support. If you name more than one person as your Patient Advocate, all of them must agree on all decisions before any action may be taken by the hospital or doctor. This White Knight may cause a lot of stress and problems for the other family members and your wishes may not be followed.

Why do you need a Financial Power of Attorney?

A Financial Power of Attorney is a legal document that allows you to name someone to make financial decisions for you. This person is called your Agent. The power granted to the Agent may be limited, or may be very broad. The Agent may act for you at anytime; mental incapacity is generally not required for the Agent to act, but if you wish, a Financial Power of Attorney may be effective only upon your mental incapacity.

A Financial Power of Attorney is an important part of an estate plan. You name someone to make important financial decisions if for some reason you are unavailable or unable to act. A spouse, as a joint owner, may be able to handle certain transactions without the signature of the disabled spouse, but there are many legal documents a spouse is unable to sign. Any assets which are owned by you alone and the spouse is the beneficiary are not under the control of the spouse. These assets may include annuities, retirement accounts and life insurance. In order to be certain someone has the ability to manage all the assets, a very complete Financial Power of Attorney is necessary.

If you become incompetent and do not have a Financial Power of Attorney, the Probate Court will appoint a Conservator to manage your financial affairs based upon Petitions filed by the family. The Conservator is under Probate Court supervision and control, and the Probate Judge may need to approve any major financial decisions. The Agent under a Financial Power of Attorney is not under Probate Court supervision.

If you do not have a Financial Power of Attorney, or you have a Financial Power of Attorney without extensive power granted in it, it may be necessary to request Probate Court approval for any planning that would protect assets in the event you need to apply for Medicare. Having a strong Financial Power of Attorney with the proper powers avoids the need to seek Probate Court approval to do this Medicare planning. Some Probate Judges will not approve Medicare Planning, and the Financial Power of Attorney avoids the cost of going to Probate Court and taking the risk the Judge will not approve the Medicare planning.

Who do you select to handle your Financial Matters?

The selection of who will be the financial manager in your financial documents (Revocable Living Trust, Will, and Financial Power of Attorney) is very important. The factors I ask my clients to consider are the following:

  • You must trust the person will make the best decisions for you and for your family.
  • Who can keep the family together, rather than causing splits, or making the splits worse?
  • Most of the decisions are financial. Who has good financial sense?
  • Who is honest?

If a family member is not suitable, you may appoint a Trust Department at a Bank to make financial decisions. A Trust Department has Trust Officers who do these jobs for a living and have knowledge and experience to properly handle your assets. An option my clients often consider is appointing a family member to act with the Trust Department.