Power Of Attorney/Health Proxy

What Is A Power Of Attorney?

A New York Power of Attorney is an estate planning legal document, often referred to as an Advance Directive, that authorizes your agent (the person you designated) to act on your behalf, in any manner in which you may, except for making medical decisions. The Power of Attorney is effective upon its execution before a notary public, by both the principal (you) and the agent you choose. It is a lifetime document which becomes ineffective upon the death of the principal, unless sooner revoked.

The authority to act under a Power of Attorney does survive the mental incapacity of the principal. So while an agent may act for the convenience of the principal while mentally aware, upon the principal’s incapacity, the agent’s role often becomes extraordinarily strategic. In fact, the existence of a Power of Attorney and Health Care Proxy alone should avoid the need to undertake a guardianship proceeding to obtain the identical powers delineated in these powerful documents.

What Is A Health Care Proxy?

A Health Care Proxy in NY is the legal document that authorizes your “agent” or “proxy” to make medical decisions for you if you are unable to do so yourself. In my practice, the Health Care Proxy is made less restrictive in order to allow the agent to make decisions most suited to the principal’s personal beliefs and instructions as previously communicated. The goal is to avoid a conflict with the decision making authority of the hospital’s Ethics committee which may interpret a restrictive proxy contrary to that of the agent.

Both Powers of Attorney and Health Care Proxies are Advance Directives which may list a succession of agents and are effective legal documents only during the lifetime of the principal.

What Is The Best Way To Avoid Conflict Between A Power Of Attorney And Health Care Proxy?

It would be ideal to designate the same agent in both the Power of Attorney and the Health Care Proxy to avoid potential conflicts in the decision making process. However, families know the strengths and weaknesses of their trusted designees, and the agent making financial decisions may not be the best person to evaluate the medical information as it becomes known. It is always best to consult with an attorney as soon as possible to ensure that the Powers of Attorney are prepared with expanded authority while ensuring that the Health Care Proxy is streamlined to ensure for the agent’s autonomy.