Baxley Maniscalco Attorneys At Law
It’s incredibly important to plan for the possibility that you may become unable to make decisions for yourself in the future.
Alabama offers two key legal tools to ensure your wishes are respected, and your affairs are managed effectively in situations where you cannot make decisions for yourself: Powers of Attorney (POA) and Living Wills.
If you are incapacitated, a durable power of attorney empowers a person, called an "agent" or "attorney-in-fact," to make decisions in your stead, whether financial or medical.
This power should only be given to someone whom you trust greatly, and who will be willing and able to make sound decisions on your behalf.
Understanding Powers of Attorney
A Power of Attorney (POA) is a legal document that authorizes a trusted individual, called your agent, to act on your behalf in managing your financial and/or medical affairs. There are different types of POAs, each serving a specific purpose:
- General Power of Attorney: Grants your agent broad authority to handle a wide range of financial matters, such as paying bills, managing bank accounts, and selling assets.
- Limited Power of Attorney: Restricts your agent's authority to specific tasks or a particular period.
- Durable Power of Attorney: Remains valid even if you become incapacitated. This is the most common type of POA for financial matters.
- Springing Power of Attorney: Becomes effective only upon the occurrence of a specific event, such as your mental incapacity being declared by a doctor.
- Medical Power of Attorney (Durable Power of Attorney for Health Care): Grants your agent the authority to make medical decisions on your behalf if you are unable to do so.
Next, let's look at the process of creating a power of attorney in Alabama.
Creating a Power of Attorney in Alabama
Alabama law offers a relatively straightforward process for creating a POA.
Here's what you need to know:
- Capacity: You must be at least 19 years old and of sound mind to create a valid POA.
- Formalities: While a written document is not mandatory, it is highly recommended for enforceability. You can use a standardized POA form readily available online or from legal aid organizations.
- Signing and Witnessing: The POA must be signed by you (the principal) in the presence of two competent witnesses who are at least 18 years old and not named as your agent or beneficiary in the document.
- Notarization: While not required, notarization adds an extra layer of protection against challenges to the POA's validity.
Selecting the right agent is crucial. Choose someone you trust implicitly, someone who understands your wishes, is responsible, and has good judgment.
Consider the following factors:
- Honesty and Trustworthiness: This is paramount. Your agent will have access to your finances and/or medical information.
- Financial Knowledge: If granting financial powers, choose someone with a good understanding of financial management.
- Communication Skills: Effective communication between you and your agent is essential.
- Availability: Your agent should be readily available to act on your behalf when needed.
Beyond designating a power of attorney, end-of-life decision-making requires an advance directive, known as a "living will."
Alabama Living Wills
In living wills, you are allowed to express your wishes if you become permanently incapacitated or when your recovery is extremely unlikely.
There is no decision that is more personal, and a living will ensures that you are the one making it.
What a Living Will Covers in Alabama
An Alabama Living Will can address various medical treatment choices, including:
- Use of artificial life support (such as respirators);
- Pain management and comfort care; and
- Organ and tissue donation.
Alabama law allows you to create a Living Will without any formal requirements.
However, to ensure its validity and enforceability, it is recommended to follow these guidelines:
- Written Document: While not a strict requirement, creating a written document is highly advisable. Consider using a standardized Living Will form provided by hospitals, hospice organizations, or legal aid groups.
- Signing and Witnessing: The Living Will should be signed by you (the principal) and witnessed by two competent adults at least 18 years old who are not related to you by blood or marriage and are not named as your healthcare agent or beneficiary in your will.
- Communication: Discuss your Living Will with your doctor, family members, and healthcare agent to ensure everyone understands your wishes.
It's also worth mentioning that there are important differences between living wills and Do Not Resuscitate (DNR) Orders.
Living Wills vs. Do Not Resuscitate (DNR) Orders
It's important to distinguish between a Living Will and a DNR order. While a Living Will expresses your overall preferences for medical treatment, a DNR order is a specific medical directive issued by a doctor to withhold CPR (cardiopulmonary resuscitation) in the event of cardiac arrest.
In Alabama, a single document can combine both a Durable Power of Attorney for Health Care and a Living Will. This combined document allows you to appoint a healthcare agent to make medical decisions and specify your preferences for treatment in one comprehensive document.
Don't Leave Your Future to Chance
Leaving your future to chance, most especially when it comes to being able to make decisions for yourself, is a recipe for disaster, headaches, and costly last-minute remedies.
Preparing for your future the right way, the first time requires experienced legal guidance. Our Alabama estate planning attorneys stand ready to assist.
Contact us today for a free and confidential consultation.