© Stanley, Lande & Hunter 2001
Everyone's estate plan should include some disability planning. The "durable power of attorney" is an excellent tool that we strongly recommend.
Disability can strike suddenly and unpredictably, as in automobile accidents. It can occur slowly, as in senility or various disabling diseases. However it happens, the person's will and other estate plan documents are of little help because the person is still alive, although incapacitated.
Until recent years, there was little a person could do to plan for disability. Regular powers of attorney could be granted to authorize another person to act, but they became ineffective when the person became disabled or incompetent.
The only choice then was to begin Court proceedings to establish a guardianship of the person and a conservatorship of the person's property. These proceedings are expensive and time-consuming because they require Court supervision, annual reports, and petitions for authority.
Most states, including Iowa, have now authorized the "durable power of attorney." The word "durable" is used because the power of attorney now survives or "endures" the person's disability or incompetency and allows the person appointed (the "attorney-in-fact") to continue to act as long as the principal is alive.
In most estate planning situations, the durable power of attorney is drafted so that it will become effective only if and when it is established that a person has become unable to manage his or her affairs. This leaves the person in complete control until disability occurs; if disability never occurs, the durable power of attorney never becomes effective.
The durable power provides many advantages to the client. It is much less expensive and much more flexible than a guardianship or conservatorship. It provides the attorney-in-fact with complete authority without the intervention of any Court. It is completely private and requires nothing to be filed in the public records. It allows a person to select who will act as attorney-in-fact instead of relying on a judge to decide who will serve.
The durable power can also be prepared so that it becomes effective the moment it is signed. This is done occasionally when the client wishes to turn over assets and control to the attorney-in-fact immediately. It may also be appropriate when the person's physical health is rapidly deteriorating or extensive medical treatment is imminent.
The durable power of attorney grants to the attorney-in-fact broad powers and authority to pay bills, manage investments, continue a business, make health care decisions, and so on. These powers provide greater flexibility and make it more convenient to operate than the Court-appointed alternatives.
The durable power of attorney should be a part of everyone's estate planning.
This power of attorney authorizes an individual, the attorney-in-fact, to make medical, health care, and personal care decisions in the event the principal cannot do so individually. The health care power of attorney survives the disability or incompetency of the principal, allowing the attorney-in-fact to make broad lifetime, and even some post-death, personal decisions. It is authorized by Iowa Code Chapter 144B. It does not supersede a living will.
The health care power of attorney becomes effective only when the principal is unable, in the judgment of his or her attending physician, to make health care decisions. Because the health care power of attorney is designed to designate an attorney-in-fact to make medical, health care, and personal care decisions in situations in which the living will is not applicable, it should be considered by all estate planning clients.
The living will is a written statement of an adult person's wishes concerning use of life-sustaining procedures to prolong his or her life. The law applies only to a "qualified patient," which means a person who has signed a living will and is in a terminal condition. This is a condition which is incurable or irreversible and, without life-sustaining procedures, will result in death in a relatively short time. The existence of a terminal condition must be confirmed by a physician other than the attending physician.
In the living will, the person states a desire that life-sustaining procedures not be administered to prolong life if he or she is in a terminal condition. The living will directs the attending physician to withhold or withdraw procedures that merely prolong the dying process and are not necessary to the person's comfort and freedom from pain. It must be in writing and notarized.
In most situations, of course, the attending physician will be the one who makes the ultimate decision. The law releases physicians from civil and criminal liability for complying with the living will. If a physician is not willing to comply, the law requires the physician to take all reasonable steps to transfer the patient to another physician. This may not always be possible or practical.
Even if a person has not signed a living will, the law allows the decision to withdraw life-sustaining procedures to be made by certain other persons, in the following order: a designated attorney-in-fact under a durable power of attorney; the legal guardian of the patient; the patient's spouse; the patient's adult child or a majority of adult children who are reasonably available; the patient's parent or parents -- even an adult sibling.
The living will is obviously a personal decision. Some people decide not to sign one, for a variety of reasons. We always recommend that clients consider it when reviewing and updating their wills and other estate planning documents.