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Subject:  Re: Response to Pixy's LIving Will article Date:  4/26/2000  10:25 AM
Author:  TMFPixy Number:  3713 of 20632

Rhecker writes:

<<If one has both a living will and a medical power of attorney, would that mean that the person with the power of attorney would make the decision (i.e. not the doctor)?

Also, if one has a medical power of attorney, which is "more powerful", does one really need to have a living will as well? Is there any risk that since there is a living will it could be honored before the medical power of attorney shows up to make any decisions?>>

There's risk in anything you do. The living will is an expression of intent while the medical power/directive is a document that allows authoritative direction. Your wishes should be discussed with the person you grant that authority coupled with a thorough description of the authority'sscope within the power itself. One could argue you don't need the living will (a free document) in the presence of a medical power/directive which takes precedence over the living will; however, suppose that person was temporarily unavailable for whatever reason? The living will reiterates one's desires concerning extraordinary life sustaining efforts in the interim.

<<And more generally, in regards to the springing durable power of attorney - if it's "durable", does it have to be "springing" as well and vice versa? Would a "springing" power of attorney not necessarily be "durable" and would a "durable" power of attorney not necessarily be "springing"? Maybe I just need more of an explanation to understand the difference.>>

A durable power of attorney is effective both BEFORE and AFTER an incapacity. Some folks don't like the "before" part. A springing power only takes effect AFTER the incapacity, the point at which it's most needed, and because it's effective after that incapacity, that's why it's called "durable." In the ordinary course of events a power of attorney is void when the grantor dies or becomes incapable of making decisions. A durable power states specifically that it remains in effect during an incapacity, but even it, too, is void after death as are all such powers.

<<Also, I was wondering what it is that makes it necessary for someone to go to court in order to have someone appointed as a guardian or conservator to acquire or sell assets to pay for such things as medical expenses. Why aren't the "next of kin" automatically given this right? Isn't it obvious that the person who is not medically capable of making the decision would want their family to take care of them rather than some court appointed guardian? Is this court appointed guardian better able to make such financial decisions about a person they don't know?

Why is this the way things work? >>

I would object most strongly if that weren't the law. There are certain relatives I would never want to have control over my assets automatically in the manner you propose. The law exists to safeguard the rights of the person incapacitated, and what you say is "obvious" in too many cases is not. Additionally, it's usually a family member who is granted this right by the court anyway should the need arise because it's the family who petitions the court for that authority. But give someone that right autormatically? Over my dead body!


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