Incapacity Planning: Financial Powers of Attorney and Advance Directive for Health Care


A Financial Power of Attorney is one of the most important legal documents that a person can have and is an essential part of every Incapacity Plan and Estate Plan. A General Financial Power of Attorney (always “durable” when used in connection with estate planning) authorizes your agent, sometimes called “Attorney in Fact,” to act on your behalf and sign your name to financial and/or legal documents.

The Financial Power of Attorney is an essential tool in the event that, due to age, illness, or injury, you are unable to carry on your legal and financial affairs. Having a General Power of Attorney avoids the “nightmare of living probate” — the time-consuming, expensive, and publicly embarrassing process whereby someone has to go to court to have you declared mentally or physically incompetent. Then, one or more persons need to be appointed to serve as your legal guardian and/or conservator, which process is subject to ongoing court supervision.

Asset Protection Powers by Financial Power of Attorney

By executing a financial power of attorney, it can grant your designated agent authority to legally access to your financial accounts, ability to pay your bills,

authority to enter into or terminate contracts on your behalf. Further, from an elder law perspective, some of the most important provisions in a Financial power of attorney are “asset protection powers.” These powers include, among other things, the ability of your agent to make unlimited gifts and the ability of your agent to establish, fund, and terminate all types of trusts, both revocable and irrevocable. These asset protection powers can be essential for implementing important asset protection strategies if you become disabled or need long-term nursing home care and want to avoid having to go broke paying for nursing home care.

Health Care Power of Attorney (Advance Directive for Health Care)

A Health Care Power of Attorney authorizes another person (called your “Health Care Agent”) to make decisions with respect to your medical care in the event that you are physically or mentally unable to do so. A Health Care Power of Attorney also specify your preference for end-of-life decisions such as whether you want to rely on medications, machines and medical procedures in order to extend your life for as long as possible, when you can no longer take nutrition or fluids by mouth. You will also use this document to indicate your wishes with regard to organ donation, disposition of bodily remains, and funeral arrangements.

This document communicates your desires to your physicians and family members regarding all forms of medical treatment and may be used to instruct your physician to withhold specific life-prolonging procedures if at any time you are diagnosed as having a terminal condition, and your physicians have determined that there can be no recovery from such condition and your death is imminent.

For a consultation about Financial Power of Attorney and/or Health Care Power of Attorney, call 678-770-3050 or email