Practice area
If you cannot decide, someone will. These documents decide who.
Incapacity is the part of estate planning that gets skipped, because it is the part people least want to picture. It is also the part most likely to actually happen, and the only part where the alternative is a public court proceeding while you are still alive.
Durable POA
Financial authority that survives incapacity.
Health directive
Names a medical agent and records your wishes.
HIPAA release
Lets your agent actually see the medical records.
Avoids conservatorship
The alternative is a public court proceeding.
The two documents, and what separates them
A durable power of attorney covers money: paying the mortgage, managing accounts, dealing with the IRS, selling property if it comes to that. Durable means it survives your incapacity, which is the entire point. A non-durable one evaporates exactly when you need it.
An Advance Health Care Directive covers medical decisions and end-of-life care. California has a statutory form for it under the Probate Code, and it does two jobs at once: it names your agent, and it records what you actually want so that person is not guessing under pressure.
What happens without them
Your family petitions the Superior Court for a conservatorship. It is public, it is contested more often than people expect, it requires a court investigator, and it can run into five figures before anyone has authority to pay a single bill.
Meanwhile the mortgage still comes due, and no bank will speak to your spouse about an account in your name alone.
HIPAA, the quiet failure point
Federal privacy law can prevent a hospital from releasing your information even to the agent you named, if the authorization language is not right. A properly drafted directive includes HIPAA authorization so your agent can actually obtain the records needed to make the decision you appointed them to make.
Common questions
Powers of Attorney & Health Directives
Does my spouse automatically have authority?
Not reliably. California is a community property state, which helps with some assets, but it does not give your spouse authority over accounts titled in your name alone, over retirement accounts, or over your medical care in the way people assume.
When does the power of attorney take effect?
That is a drafting choice. It can be immediate, or springing, effective only on a documented determination of incapacity. Springing sounds safer and is often slower in practice, because someone has to produce the determination before a bank will act.
Can I change my agent later?
Yes, at any time while you have capacity. Revocations need to be delivered properly and any recorded copies dealt with, which is worth doing carefully rather than informally.
Related
Other areas of the practice
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