Health Care Surrogate or Durable Power of Attorney for Health Care 

The function of a Durable Power of Attorney is to eliminate the need for conservatorship or guardianship proceedings in a court of law should you ever become incapacitated and be unable to manage your own financial affairs or make your own health care decisions. The Durable Power of Attorney keeps you in charge of your own destiny. You, and not some judge, will determine who has the legal authority to act for you should the time ever come when you cannot make decisions for yourself. Unless and until such incapacity occurs, you continue to retain full control over your affairs. If it does, the person you have appointed will take over your affairs and act within the guidelines and restrictions you have already established. The person you've chosen to act in your behalf is called your attorney in fact. Clearly, your attorney in fact must be someone you trust completely. This could be your spouse or another responsible member of your family or a friend. Additionally, the law gives you power to impose reasonable limitations and guidelines on the actions which your attorney in fact can take. Your Attorney In Fact Represents You The attorney in fact can pay bills, deposit checks, handle taxes, sell stocks, invest in securities - in short, everything that you would otherwise do for yourself. You can specify in your Durable Power of Attorney whether you wish to have your money invested in stocks and bonds, real estate, or simply allowed to stay safely in a bank. As a safeguard, you can direct that your representative cannot sell or encumber your house as long as youíre alive. This is precisely how you can avoid becoming a victim of negligence or fraud or incompetence. If your financial affairs were far more complicated, you could draft your Durable Power of Attorney to meet precisely those needs and circumstances. In other words, flexibility is the key. But this is not all. Medical and Health Care Decisions The Durable Power of Attorney authorizes the person youíve selected to make medical and health care decisions when youíre not in a position to make them for yourself. This may involve honoring your desire to be cared for by a particular physician in a particular medical facility, or it may involve prohibiting the use of heroic medical efforts to sustain life artificially long after it has ceased to exist in any meaningful manner. The point is, the Durable Power of Attorney allows you to express your wishes in a legal form and gives your attorney in fact the required power to implement them for you. You can revoke this power at any time as long as youíre competent. Avoids Court Proceedings Remember, without the Durable Power of Attorney, court proceedings may be necessary to appoint a person with legal authority to handle the incapacitated personís financial affairs. Such guardianship or conservatorship proceedings are costly, time-consuming, public and embarrassing. A court-appointed conservator has to post a bond cost of which comes out of your estate. He has to make periodic accountings to the court of his actions. His powers are highly restricted and always subject to court supervision. And once a conservator is appointed, it will take another order of the court to replace him even though he proves to be incompetent or negligent. You can avoid the trauma of a court proceeding simply by executing a Durable Power of Attorney. For further information contact: Preventing Challenges to Your Durable Power of Attorney for Finances by Shae Irving Copyright © Nolo Press If you think someone is likely to go to court and challenge your durable power of attorney or claim that you were coerced into signing it, you can take several steps to head off problems. See a Lawyer. You may want the lawyer to review the estate planning documents you've created yourself, or to draw up some documents for you. An experienced estate planning lawyer can answer questions about your durable power of attorney and about your other estate planning documents as well. For example, you may also be expecting challenges to your will, a trust or health care wishes. You can talk with a lawyer about all of these issues. The point is to have the lawyer put your fears to rest by answering your questions and confirming that your estate plan will hold up under the challenges of your stubborn relatives. Your attorney can also testify about your mental competency, should the need arise. Sign Your Document in Front of Witnesses. You can sign your document in front of witnesses, even if your state does not require it. After watching you sign, the witnesses themselves sign a statement that you appeared to know what you were signing and that you did so voluntarily. If someone later challenges your competency, these statements will be strong evidence that you were of sound mind at the time you signed your document. Get a Doctor's Statement. You may also want to get a doctor's statement around the time you sign your durable power of attorney. The doctor should write, date and sign a short statement saying that he or she has seen you recently and believes you to be of sound mind. You can attach this statement to your power of attorney document. Then, if necessary, your attorney-in-fact can produce the statement as proof that you were of sound mind when you signed your power of attorney. Make a Videotape. You can also videotape a statement of your intent to make and sign the durable power of attorney. Such a step should not be necessary, but going to this length may further minimize the chances of a successful challenge to your competency. Be warned, however, that using a videotape may work against you. The person challenging your power of attorney document will want to use any visible quirks of behavior or language as evidence that you were not in fact competent when you made your document. If you do make a videotape, keep this tape with your power of attorney document. DURABLE GENERAL POWER OF ATTORNEY & ADVANCE DIRECTIVE & APPOINTMENT OF HEALTH CARE AGENT Frequently Asked Questions Presented by Hodes, Ulman, Pessin & Katz, P.A. Towson · Columbia · Washington, DC Bethesda · Havre de Grace WHAT IS A GENERAL POWER OF ATTORNEY? Properly drafted, this is a useful tool for asset management in the event of your disability. It is a document by which you appoint another person to act as your agent to perform most of the basic financial transactions of daily life - such as handling banking or investments, selling real estate, paying bills, making gifts, filing tax returns - in short, doing anything you could do in a business or legal sense. A General Power of Attorney confers broad powers and has no limits to its effectiveness, but after a few years it becomes "stale," and should be renewed. A General Power of Attorney should be durable, which means that it remains legally enforceable despite your disability - the very time that it is needed. WHY DO I NEED A GENERAL POWER OF ATTORNEY? You need a General Power of Attorney so that someone is empowered to act for you in the event that you are unable to act for yourself for any reason, and so that you and your family can continue your day to day affairs with a minimum of delay, difficulty or judicial intervention. WHAT HAPPENS IF I DON'T HAVE A GENERAL POWER OF ATTORNEY? Without a General Power of Attorney, your family may have to seek a court- appointed guardian to make personal and financial decisions for you if you are disabled. This means there will be doctors' examinations and certificates to obtain, two different attorneys that must be paid, a court hearing and an annual accounting thereafter. This may be a waste of your family's financial resources, and inflict a terrible emotional toll. WHAT FEATURES SHOULD MY GENERAL POWER OF ATTORNEY INCLUDE? A General Power of Attorney should be drafted broadly enough to allow you to accomplish federal tax objectives or to plan for Medicaid eligibility, if necessary. It must be durable and should include (among other powers) gift- giving powers, and powers over any real estate, investments, insurance, retirement benefits or other assets you may own. It should name not only your "first choice" agent(s), but alternates as well. CAN I USE MY GENERAL POWER OF ATTORNEY INSTEAD OF A WILL? Absolutely not! A General Power of Attorney is only effective during your lifetime, so it cannot substitute for a will in disposing of your assets after your death. Instead, your General Power of Attorney "dovetails" with your will as part of an integrated plan to manage your assets. WHAT IS AN ADVANCE DIRECTIVE AND WHY DO I NEED IT? The Maryland legislature passed a law, effective October 1, 1993, that allows you to appoint an agent to make health care decisions for you if you are unable to make them for yourself, and to specify in advance to that health care agent (or anyone else involved in such a decision) what treatments and procedures you want or do not want under certain circumstances. This document is called an "Advance Directive and Appointment of Health Care Agent" because it does both things, as well as name the person you would want as a guardian if guardianship cannot be avoided. The Advance Directive also is durable - that is, continues to be effective despite your disability. Without such a document, your family and health care providers may be uncertain as to your wishes with regard to such issues as artificial life support in the event you suffer from a terminal illness. IF I ALREADY HAVE A LIVING WILL, DO I NEED AN ADVANCE DIRECTIVE? Yes! The new law allows a much broader scope for health care decision-making than before and makes most living wills and medical powers of attorney drafted prior to October, 1993 out-dated. For example, the new law allows one to refuse life-supporting treatment in circumstances other than when one is near death. WHERE CAN I GET THE GENERAL POWER OF ATTORNEY AND ADVANCE DIRECTIVE AND APPOINTMENT OF HEALTH CARE AGENT? While there are many blank form versions of these documents available, you should have these documents drafted by an attorney who is well-informed on issues of asset and health management and who can tailor the documents to your family's needs and beliefs. There are many nuances and complexities to the use of the General Power of Attorney and Advance Directive and Appointment of Health Care Agent. If you would like further information on the establishment and use of these highly useful tools, please call one of the estate planning attorneys at the law firm of Hodes, Ulman, Pessin & Katz, P.A. ABOUT HODES, ULMAN, PESSIN & KATZ, P.A. Hodes, Ulman, Pessin & Katz, P.A. is a law firm that concentrates its practice on Elder Law, Estate Planning, Trust Administration, Tax & Business Planning, Litigation, and Labor & Employment Law. The attorneys at HUP&K are highly skilled in their respective fields, with years of experience handling the complex legal issues that face their clients, whether they are individuals or large corporations. HUP&K is committed to providing clients with sound legal advice that incorporates expertise, thorough research, attention to detail, diligence and strong business acumen. HUP&K provides the depth of resources available in larger firms while maintaining the accessibility, quick response and cost benefits of boutique firms. HUP&K has a dedicated team of attorneys that uses diversified skills to give each client experienced advocacy. HUP&K has built client relationships on our resourceful approaches, excellence, and integrity. We stand ready to help you today in planning for tomorrow. (c) Hodes, Ulman, Pessin & Katz, P.A. Hodes, Ulman, Pessin & Katz, P.A. 901 Dulaney Valley Road Suite 400 Towson, Maryland 21204 (410) 938-8800 E-Mail: HUPK@HUPK.COM