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Planning for Incapacity

 Q: What is a Durable Power of Attorney?
It is a document that allows you to appoint one or more persons to make your business and financial decisions and this becomes even more crucial should you become incapacitated. Without a durable power of attorney, someone who is mentally incapacitated must be taken to guardianship or conservatorship court to have a decision maker named for them by a judge. A carefully written durable power of attorney will allow you to name someone you trust to make decisions for you if you become disabled to the point of no longer being able to make those decisions yourself.

 Q:  Who can establish a Power of Attorney?
Any individual over the age of majority and who is mentally and legally competent can establish a Power of Attorney.

 Q:  Who may act as an agent under a Power of Attorney?
Your agent, or “attorney-in-fact”, can be anyone who is over the age of majority and mentally and legally competent. You may appoint multiple agents to serve, either simultaneously or separately, and this person may be a close family member such as a spouse, sibling, or adult child, but may also be any person such as a friend or a professional with an outstanding reputation for honesty.

 Q:  What is a Durable Power of Attorney for Healthcare?
A healthcare power of attorney allows your trusted friend or family member to make medical treatment decisions for you if you are unable to communicate your wishes to doctors. Without one, you must have a guardian or conservator of your person appointed by the court before decisions can be made on your behalf.  A healthcare power of attorney not only saves precious decision making time, but it also makes sure that the individual you trust the most has the power to make these most important decisions for you if you are unable to make the decisions on your own.

 Q:  What is a Living Will?
A living will or directive to physicians directly informs your doctors that you do not want extraordinary medical measures taken, especially those that would cause you pain or discomfort, if those measures would only prolong the dying process. This document backs up your health care power of attorney. Anyone can deliver this document to your doctors if your agent under your health care power of attorney is unavailable to make health care decisions for you.

 Q:  What is a HIPPA Authorization?
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) states that absent a written authorization from the patient, a health care provider or health care clearinghouse cannot disclose medical information to anyone other than the patient or the person appointed under state law to make health care decisions for the patient. The Regulations promulgated under HIPAA specifically authorize a HIPAA Authorization for release of this information to persons other than you or your personal representative. Thus, you should consider creating such an Authorization so that loved ones and others can access this information in addition to the personal representative.


The Wealth Solutions Counsel is a practice group of Keith, Miller, Butler, Schneider, and Pawlik, PLLC. The Wealth Solutions Counsel assists clients with Estate Planning, Wills and Trusts, Wealth Preservation, Asset Protection, Planning for Children, Estate Taxes, Tax Law, Tax Preparation, Business Law, Business Succession Planning, Special Needs, and Probate and Estate Adminisration, in Rogers, Fayetteville, Bentonville, and Springdale, and in both Benton County and Washington County, Arkansas.
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