Many
of the day to day domestic responsibilities that need to be handled on our behalf
during incapacity involve personal care issues that are typically unrelated to
what is usually provided for in our durable power of attorney to manage
financial and property affairs. By
planning ahead we can authorize a trusted agent to oversee our personal care
during incapacity. Let’s examine the
power of attorney for personal care.
“Personal
care” encompasses a wide range of domestic and personal issues, including
providing for our in-home care, maintaining our customary standard of living, taking
care of our home and personal property, ensuring our transportation needs are
met, taking care of our pets, picking up our mail, providing for our living arrangements
(such as our placement into a nursing home or assisted living center), and
hiring, compensating, and discharging our household and health care employees
and providers. Personal care issues involve
transactions that impact our quality of life, while managing our assets affect
the ability to pay for these transactions.
Most
durable powers of attorney, however, are rarely drafted to deal with our personal
care issues. Powers of attorney are
typically drafted to address other important issues, such as our banking,
government benefits, taxes, real property, and investments. Personal care issues (discussed above) are not
expressly addressed in the typical durable power of attorney.
Granting
the authority to make personal care decisions can be incorporated either
into a broader durable power of attorney for finances or into an advanced
health care, wherever more relevant.
Better yet, the authority can be placed into a separate stand-alone
power of attorney for personal care decisions.
That way, each document can be used in the most appropriate context. Banks, for example, will not be interested in
the personal care provisions when examining a durable power of attorney for
finances.
If personal
care authority is incorporated into the broader durable power of attorney and advanced
health care directives, then the same agent will have access to person’s financial
resources necessary to pay for their personal care transactions. This approach works well for attorney drafted
durable powers of attorney, but for not the simple statutory power of attorney.
When using California’s simple one-page Statutory
Power of Attorney (and not a customized broadly drafted power of
attorney), one should also consider a separate power of attorney for personal
care. The same persons can be named to
act as agent under both powers of attorney.
The durable power of attorney for finances should expressly require the
financial agent to pay for all transactions entered into by the agent for
personal care decisions. The personal
care agent must rely upon the durable power agent to pay for the personal care.
Finally,
when different persons are named as agent under the advance health care
directive than those who are named as agent under the power of attorney for
personal care, the funeral, burial, or cremation arrangements should be left to
the advance health care agent. California
law gives the health care agent priority over all other persons in regards to
such arrangements.
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