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Who Needs a Power of Attorney and Living Will?

Who Needs a Power of Attorney and Living Will?

The answer is everyone over the age of eighteen. Why? Because at any time in our lives we may become incapacitated, or out of contact and if medical or financial decisions need to be made, then someone you trust should be given the power to make those decisions for you. Military personnel and others who may be assigned to out of the way places always have those two legal documents in place, just in case they are needed. Any of us could be driving down the street and get hit by an inattentive driver. If the ambulance takes you to a hospital unconscious, and you need care decisions made, who do you trust to make those medical decisions. And if for a short time period, or a long time, you are incapable of making those decisions, you want the person you trust to make good decisions in keeping with your wishes. That person must have the emotional strength to make regular decisions or end of life decisions, which in many cases are difficult because emotions are deeply intertwined, even if it is clear that there is no hope.


A living will allows your “health care representative” to consult with the doctors to make routine medical decisions, such as common operations, or extraordinary decisions, such as artificial respiration or nutrition. I remember decades ago when my very elderly aunt was unconscious and on life support with no real hope of recovery, and her son, a prominent doctor, was her health care representative. He instructed her health care providers to stop the nutrition, but continue with the pain medication, and in two days she died in peace, without pain, in accordance with her wishes.

The power of attorney is especially critical for the very elderly who become incapable of handling their financial matters. Without one, a court may have to appoint someone and that may not be the person you would choose. This can arise in families where two or more children are at odds over who should make decisions, or what the decisions should be. You can prevent those problems from arising by stating who you want to handle your financial affairs, let’s face it. Some children are not capable of making sound decisions, or being fair to the other children. You know your family better than anyone, so working with an elder law attorney who understands all the various decisions that may be needed, you can ensure that the children or other person you trust to do right will be the one to handle matters.

Both a living will and a power of attorney can be revoked by you as long as you are still capable. That gives you the ability to change things if family circumstances change, which can and does happen in some families. Gifting powers can allow the person you name to gift to persons your name, including the one who is power of attorney. Since that is a dangerous power, you should be one hundred percent sure the person you choose will always be faithful to carry out your wishes, and since those powers can be abused, you should think carefully about the character and emotional strength of the person you choose. It’s your life, your money, and your family, so after careful consultation with an elder law attorney, get those critical documents in place, and let the person you name keep an original, or at least know where you keep it. Once done, it will give you peace of mind that you have provided your family two of the critical tools they need to take care of you, and carry out your wishes.

Attorneys Stephen O. Allaire (Of Counsel) and Halley C. Allaire are partners in the law firm of Allaire Elder Law.
Attorneys Stephen O. Allaire (Of Counsel) and Halley C. Allaire are members of the National Academy of Elder Law. Attorneys, Inc.
Allaire Elder Law is a highly respected, and highly rated law firm with offices in Bristol, CT.
We can be contacted by phone at (860) 259-1500 or by email.

If you have a question, send a written note to us and we may use your question in a future column.




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