Incapacity & End-of-Life

Incapacity & End-of-Life Planning

There is a very high probability that each of us will become disabled, at least temporarily, at some point during our lives. Depending on the nature of the disability, we may also become “incapacitated” and not be able to make responsible decisions for ourselves or our assets. Fortunately, the law provides a mechanism by which we can appoint someone else to make decisions for us. An appropriate power of attorney, which is based in the law of principal and agent, authorizes someone you want to act on your behalf as an “attorney-in-fact,” which can be “general” (i.e., authorized to do pretty much everything) or “limited” to certain areas, such as making healthcare decisions under a healthcare power of attorney. Care should be taken, however, in deciding who to appoint and under what circumstances their powers are to be effective, as powers of attorney are sometimes abused by attorneys-in-fact who start acting in their own interests instead of for the benefit of their principal. Indeed, because most powers of attorney are effective immediately regardless of incapacity, attorneys-in-fact sometimes start acting for their own benefit even before their principal becomes incapacitated in the hope that they either won’t get caught or that their principal with let them off easy if they are. In addition, while at common law a power of attorney was deemed to be ineffective while the principal was incapacitated unless the power specified that it was “durable,” i.e., remained in force, the Utah legislature recently adopted the Uniform Power of Attorney Act which, among other things, provides that all powers of attorney are “durable” unless specified otherwise. As a result, we sometimes advise our clients to use what’s called a “springing power of attorney” that “springs” to life only when the principal becomes incapacitated. Whether general, limited, non-durable, durable or springing, however, every power of attorney terminates at the death of the principal. Despite their potential for abuse, every good estate plan includes one or more powers of attorney.

There are certain decisions, however, that you may want to make in advance of any incapacity as a matter of personal preference and to spare your loved ones the agony of having to make them, such as when to “pull the plug.” An Advance Health Care Directive instructs your health care providers what to do if you are in a “terminal condition” (i.e., death is imminent unless drastic measures are taken) or a “persistent vegetative state” (brain dead). These types of provisions can also be included in what is sometimes called a “living will.” Living wills, however, often also include funeral instructions and similar types of last wishes. Every fully-integrated estate plan should also include an Advance Heath Care Directive and/or Living Will.

Call us today at 801-505-5600 to learn more about how our Salt Lake City, Utah-based trust, estate and probate attorneys at J.D. Milliner & Associates, P.C. can help you create a fully integrated estate plan that includes appropriate powers of attorney, an Advance Health Care Directives and/or a Living Will.

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