People with special needs can execute a power of attorney (POA) and an advance medical directive (AMD) to ensure financial and medical affairs are handled according to their wishes should they become incapacitated. When utilized by adults who have special needs and are competent at managing their own day-to-day lives, the POA and AMD provide peace of mind while allowing continued independence and autonomy.
Special Needs Power of Attorney
A POA is a document appointing an individual, called an “agent,” to act with legal authority on someone else’s behalf. A POA is one of the most important – if not the most important – legal documents a person can have if he or she becomes disabled, incapacitated or needs the assistance of another person. While every state is different, in New Jersey, should someone become incapacitated without having a POA in place, a guardianship may be required to handle the financial affairs for that person.
The power can be limited or unlimited in both authority and time. For example, an agent’s authority can be limited to just paying bills and banking or more broadly defined allowing the agent to review and execute legal contracts or engage in real estate transactions.
A POA can be revoked at any time while the grantor (the person for whom the POA was executed) is competent. A POA ends with the grantor’s death.
It is important to note that no one has the automatic legal right to act for another for adult. This includes a spouse, parent, adult child, or sibling.
Advance Medical Directives for People with Special Needs
An AMD is any written instruction appointing a person to make decisions on another person’s behalf. This document appoints a health care representative to make medical decisions and can include details on the kind of health care someone wants, or does not want, should he or she lose the ability to make health care decisions for themselves because of incapacitation.
AMDs may be revoked by oral or written notification. Also, the designated health care representative should be authorized to receive protected health care information under the Health Information Portability Privacy Act (HIPPA).
An AMD is different than a “Living Will” in that it includes the appointment of a health care representative while a Living Will does not.
Every situation and person are different, so a power of attorney and advance medical directive need to be tailored to the client’s wishes and needs. Timothy Rice Estate & Elder Law Firm has vast experience assisting people with special needs in estate planning and making the best decisions for their care.
