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August 26, 2019

Who Should I Appoint as My Attorney-in-Fact in My Health Care Power of Attorney?

An overview of Health Care Power of Attorney and essential criteria for selecting your Health Care Attorney-in-Fact.

Health Care Power of Attorney Overview

A Health Care Power of Attorney is a crucial piece of any estate plan. In this document, you give someone the authority to act on your behalf in health care decisions if you become mentally incapacitated. The person granting the authority is called the Principal. The person receiving the authority is called the Attorney-in-Fact.

Supplementary Role to Advance Health Care Directive

A Health Care Power of Attorney often supplements one’s wishes regarding health care treatment and end-of-life decisions, outlined in their Advance Health Care Directive. However, a Health Care Power of Attorney is essential because there are often ambiguous or unaccounted circumstances impossible to address in an Advance Health Care Directive adequately. In those situations, an Attorney-in-Fact would need to step-in to make health care decisions.

Criteria for an Attorney-in-Fact

When selecting an Attorney-in-Fact, it is advisable to choose someone you trust, who is aware of your health care and end-of-life preferences. Likewise, this person would need to be willing to accept the responsibility to act on your behalf.

Frequently, clients choose their spouse, adult children, or siblings. I advise clients to select at least three back-ups, or successor, Attorneys-in-Fact. Among these selections, some of them should be younger than you. An Attorney-in-Fact that is your age or older is more likely to die or be incapacitated themselves by the time you would need to rely on them.

In summary, criteria to consider when selecting an Attorney-in-Fact:

• Someone you trust

• Knows your health care & end-of-life preferences

• Willing to accept the role

• Ideally younger than you (and in good health)

This article represents the opinion of the author and is intended for educational purposes. This article does not constitute legal advice, nor does it create an attorney-client relationship. One should always consult with an experienced attorney before making estate planning decisions.

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