Legal Readiness Brief

Staff Judge Advocate

180th Fighter Wing

Swanton, Ohio

Powers of Attorney and Advance Medical Directives

Briefing Topics

• Limited or special powers of attorney

• General powers of attorney

• Advance Medical Directives

Power of Attorney (PoA)

• A document providing evidence of authority given to another to act as agent for the person giving authority (the “principal”)

• Two types of PoA:– Special, or limited– General

Limited or Special Power of Attorney

• Unique to particular type of decision, business, agency or transaction

• Examples:– Parenting authority to nonparent– Register/transfer motor vehicles– Banking– Ship household goods– Specific transaction, such as real estate

closing

PoA In loco parentis

• PoA “in loco parentis” enables a non-parent to exercise parent’s rights and responsibilities over named child or children

• Those military members required to have a family care plan completed, AF Form 357, may need parenting PoA to complete care plan

General Power of Attorney

• Very broad grant of authority

• Trust is imperative

• Intended to convey unlimited authority to transact all kinds of personal business for the principal

• Agent may be liable to principal for abuses, but irreversible damage can be done if trust is misplaced

General Power of Attorney Options

B a lan ce ris k ag a in s t n eed /ad van tag es .

E ffec tive n owE n d s u p on d isab ility o f p rin c ip a l

D u rab le P oAE ffec tive n ow

N ot a ffec ted b y d is ab ility o f p rin c ip a lM ay avo id n eed fo r g u ard ian s h ip

S p rin g in g P oAN ot e ffec tive u n til c on d it ion oc cu rs

C on d it ion m ay b e d isab ilityM ay avo id n eed fo r g u ard ian s h ip

G en era l P ow er o f A tto rn ey

General Power of Attorney

• Without specific words to make it “durable” or “springing”, PoA is effective upon signing and ends upon death, legal disability, or revocation

• “Legal disability” upon mental or physical impairment that makes principal unable to transact business for self, not legally competent

Durable PoA

• Durable PoA is a general PoA that includes language stating it remains effective even if principal becomes legally disabled or incompetent

• If principal is legally competent when PoA is signed, PoA remains valid even if principal is later disabled

Durable PoA

• If person becomes legally disabled without a valid durable PoA, it is then too late for someone to be appointed “power of attorney” for that person

• In that event, someone (usually spouse or closest relative) would need to be appointed legal guardian by probate court of county of legal residence

Durable PoA

Legal guardianship proceedings can be costly and not responsive to immediate needs

– Spouse or relative would need to hire attorney, obtain bonding, arrange expert physical/mental evaluation of principal, account to probate court for income and expenditures

– All cost money– All take time

Durable PoA

• If you have someone that you trust to take over your affairs upon your disability, such as spouse or parent, you should consider granting a durable power of attorney to minimize risks of delay, expense and inconvenience

• If you don’t trust someone with that authority, don’t even consider it

Springing PoA

• A springing power of attorney is a grant of authority that is not immediately effective upon signing, but becomes effective (“springs” into effect) upon occurrence of a specified event

• Often tied into disability, i.e., PoA is not effective until principal becomes disabled

Limitations of PoA

• Third party is entitled to rely on

PoA, but not required to

• If in doubt as to whether a person, agency or business will recognize the PoA, ask business or agency in advance of deployment, if possible

Termination

• PoA or directive remains effective for any term stated in document

• Any PoA or directive can be revoked at any time by principal destroying PoA or signing a document revoking it & giving notice to agent and others who might have relied upon it

• Contact base legal office or civilian attorney for advice

Advance Medical Directives

Documents signed in advance of

medical treatment to give direction

to medical providers as to the patient’s

intentions and choices in the event the

patient is unable to be consulted with

respect to his or her wishes

Advance Medical Directives

• Durable power of attorney for health care– Specifies the person the patient wants

to make health care decisions for the patient if patient is unable to

– Highly advisable if potential for conflict exists between spouse, parents, siblings, etc.

Advance Medical Directives

• Living Will– Expresses the patient’s wishes to not be kept

alive artificially if determined by physicians to be in a “permanent unconscious state”

– Includes a designation of persons, e.g., family members, to contact in that event

– Most high-profile “right to die” cases arise over the issue of the patient’s intent

– The living will is the one way authorized by state law for a patient to express that intent in a legally recognized way

Conclusion

• Power of Attorney– Special or limited

• Parenting

• Specific Transactions

– General• Durable

• Springing

• Advance Medical Directives– Living Will– Durable Power of Attorney for Health Care

Base Legal Office Services

• Available to military members and dependents with military ID

• Priority will be given to deploying personnel

• Available on drill weekends and by special appointment

Base Legal Office Services

• Building 114, Suite 132• Telephone: 419-868-4191• Phone is not normally manned

Monday-Friday, but messages arechecked

• For emergency deployment-readiness issues between drill weekends, contact the 180th FW orderly room at 419-868-4030