Who Speaks for You While You’re Still Here
I am not an attorney, and this is not legal advice. The rules for these documents — the forms, the witnesses, and whether a notary is needed — are set state by state. Use this to understand what you need, then get it done properly where you live.
For the last few Wednesdays we have been talking about what happens after you die: the house, the will, and the beneficiary forms that overrule it.
Here is the uncomfortable truth underneath all of that. A will does nothing while you are alive. Not on the day of the stroke. Not during the three weeks in the hospital. Not in the year your memory starts to slip.
And that is the stretch where families get stuck. The bills keep coming. The doctors need decisions. The bank will not talk to your son. Your daughter is standing in a hallway trying to explain to a stranger that she knows what you would want.
There are three documents that prevent most of that, sometimes four. They are inexpensive, they take an afternoon, and roughly two out of three adults do not have them.
Document one: a durable power of attorney for finances
This names someone — your agent — who can handle your money and property if you cannot: pay the mortgage, deal with the bank, file the taxes, talk to Social Security.
The word that matters is durable. An ordinary power of attorney can end at exactly the moment you need it most, when you lose the ability to make decisions. A durable one is written to keep working.
The person you name takes on real duties. The Consumer Financial Protection Bureau publishes free guides for agents, and the rules are simple and strict: act in your interest, not theirs; keep your money separate from theirs; and keep records of every dollar in and out. Choose someone who will actually do that, not just the oldest child by default.
One practical step most people skip: ask your bank now whether it will accept your power of attorney when the time comes, or whether it wants its own form on file. Finding that out from a hospital bed is too late.
Document two: a health care power of attorney
This one names the person who makes medical decisions for you when you cannot. Depending on your state it may be called a health care proxy, a health care agent, or a medical power of attorney. It is the same idea.
It does something else people do not expect. Under federal privacy law, the person you name in a health care power of attorney is generally treated as your personal representative. The U.S. Department of Health and Human Services says providers must let that person inspect and receive copies of your health information. That is the difference between your daughter being told “I am sorry, I cannot discuss that” and being handed the chart.
A will is the letter you leave. These documents are the voice you keep.
Document three: a living will
A health care power of attorney says who decides. A living will says what you want: about life support, feeding tubes, resuscitation, and comfort care at the end.
Together, many states call these two documents an advance directive. Researchers writing in Health Affairs found that only about one in three U.S. adults has completed any kind of advance directive for end-of-life care.
The living will spares the person you love from guessing. Without one, the decision still gets made — but it is made by someone standing in a hallway, trying to remember a conversation you may never have had.
The optional fourth: a HIPAA authorization
Your health care agent’s authority generally begins when you cannot decide for yourself. But there is a long stretch before that: appointments, test results, a spouse or child who is helping you manage care while you are perfectly capable.
A simple HIPAA authorization lets the doctors’ offices talk to the people you name, now, without anyone having to prove you are incapacitated. It is often a one-page form, and many attorneys include it with the others.
What happens if you do not have them
If you cannot make decisions and there is no power of attorney, your family’s main option is usually to go to court and ask a judge to appoint a guardian or conservator.
The CFPB’s own guide for court-appointed guardians describes what follows. There is a hearing. The guardian may have to buy a bond. They must file an inventory of everything you own, report to the court every year, and sometimes get the judge’s permission for major decisions. The guide says it directly: the guardian is an agent of the court.
That is appropriate when there is no other way. But it is slower, costlier, and far more public than a document you could have signed at your kitchen table. And the judge, not you, decides who it is.
Five decisions to make before you sign anything
- Who. Choose for judgment and nerve, not birth order. The best agent is calm under pressure, organized, and willing to follow your wishes even when they disagree.
- A backup. Name an alternate for each document, in case your first choice cannot serve.
- When it starts. Some financial powers take effect immediately; others only after a doctor certifies you cannot decide. Ask your attorney which makes sense in your state. The wait-until kind can cause delays at exactly the wrong time.
- The conversation. Sit down with the people you name. Tell them what you would want, and why. The document gives them authority; the conversation gives them confidence.
- Where it lives. Originals in a safe place, copies with your agents and your doctor. Put the list of where everything is in the same folder as your will and your beneficiary printouts — one place your family can find.
What to do this week
- Check what you have. Find any power of attorney, health care proxy, or living will you have signed. Note the dates.
- If they are more than a few years old — or were signed before a marriage, divorce, death, or move to a new state — have them reviewed.
- If you do not have them, your state’s forms are often available free through your state attorney general, health department, or bar association. An elder-law attorney can draft all of them in one visit.
- Call your bank and ask how it handles powers of attorney.
- Have the conversation with the people you are naming. That is the part no form can do for you.
A will is the letter you leave. These documents are the voice you keep. Put them in place while it is still entirely your call.
Go be bold!
Tell me where you stand. Reply with one word: “done,” “outdated,” or “nothing yet.” No details needed. I will use the answers to decide what we cover next in this series.
Sources
- Consumer Financial Protection Bureau, Managing Someone Else’s Money — free guides for each fiduciary role, including the duties of an agent under a power of attorney.
- CFPB, Help for Court-Appointed Guardians of Property (PDF) — the hearing, the bond, the inventory, the annual accountings, and the phrase “agent of the court.”
- U.S. Department of Health and Human Services, Personal Representatives — why a health care power of attorney gives that person access to your records under HIPAA.
- Yadav KN et al., “Approximately One In Three US Adults Completes Any Type Of Advance Directive For End-Of-Life Care,” Health Affairs 36(7), 2017 — the source of the one-in-three figure.
