Monday, August 23, 2010

Top Five Reasons You Should Have DPOA's

The Top 5 Reasons You Should Have DPOA's

You may be asking, what in the world is a DPOA? That's a good question and before I get into the top 5 reasons you should have them, let's explore what a DPOA is.

DPOA stands for Durable Power of Attorney. This is a legal document where you specify who YOU want to make decisions for YOURSELF if you become incapacitated. By incapacity, I mean when you cannot communicate your own decisions due to illness, infirmity or any other reason.

There are two types of DPOA's. First, there is the financial type. The second type is for health care or medical decisions. These are two separate legal documents which CANNOT be combined. Here's why:

1. Each type of DPOA is governed by different state laws.
2. Each DPOA deals with different subject matter and has it's own individual structure.
3. It is common for people to want one person handling their money if they are incapacitated and a different person talking to their doctors.

For those three reasons, it is customary to have a Financial Durable Power of Attorney and a separate Health Care Durable Power of Attorney.

A word about why it is called "durable". A Power of Attorney that is not "durable" is revoked as a matter of law when the principal (the person who is making the Power of Attorney) becomes incapacitated. A Power of Attorney which is durable, survives the incapacity of the principal.

Now on to the top five reasons you want the two types of Powers of Attorney:

1. To protect yourself. When you have a Durable Financial and Health Care Power of Attorney, it is YOU who decides who YOUR decision maker will be if you are incapacitated. These "agents" are people you have decided, after due deliberation, you trust to make decisions for you if you cannot make them for yourself. This is crucial with our HIPAA laws because you can name your HIPAA personal representative in the document. Without that, because of HIPAA, it is difficult to obtain medical information about you when you are sick or injured.

2. The law will not protect you. State laws provide for who will make decisions for you if you fail to adopt the two types of DPOA's. However, if they are the same person you would choose, it would be coincidence and only by chance. This is especially true for unmarried persons, or people in unconventional relationships.

Also, because of the HIPAA laws (medical information privacy laws) it is crucial that you have designated someone that can speak with your doctors and medical providers. This is done in a DPOA.

3. To protect your property. The Financial Durable Power of Attorney allows you to select someone you trust to handle your money and property if you are incapacitated. This affords you much greater comfort than having a Court supervised Conservatorship appointed for you. Your choice is generally always better than the choice forced on you by law.

4. To protect your family. By naming your own decision maker you can protect your family by creating greater likelihood that your choices and plans for yourself and family will occur if you are disabled. This affords greater protection and comfort to you and your family. This is not completely foolproof however. The key is choosing your agent wisely.

5. To avoid conflict in the family when you are sick. Nothing will tear a family apart faster than conflicts over who should be your decision maker. When you create your DPOA's, you can, in most cases, eliminate conflict over who should make your decisions if you are incapacitated. To have your own choices respected and enforced will always help you sleep better. Again the key is to choose your decision makers wisely.

Those are my top five reasons I think you should have DPOA's. If you have others, or any questions, please get in touch with me or leave a comment.

Bernie Greenberg

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