Roth-Gutman Law

Strategizing with you to help a child
Strategizing with you to help a child

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Protective Powers for You and Your Family

Estate Planning for Everyone:

Power of Attorney & Living Will

For purposes of this article, it will address three types of documents:

General Durable Power of Attorney, Durable Medical Power of Attorney and Living Will

General Durable Power of Attorney 

A General Durable Power of Attorney is used to appoint someone to handle your financial affairs while you are alive but may be affected by a disability or are otherwise incapacitated. It is sometimes also just called a Power of Attorney, but may be referred to as a Durable Power of Attorney, General Power of Attorney, and Financial Power of Attorney. This document can assist with long-term planning that may become necessary as well as any immediate needs should someone need to step in.

Durable Medical Power of Attorney 

A Durable Medical Power of Attorney is when you appoint someone to make medical decisions for you, but only if your doctor finds you are unable to make your own medical decisions. This document is also referred to as an Advanced Healthcare Directive, Proxy Directive, Health Care Proxy, Healthcare Power of Attorney. Examples of when a health care agent or health care representative is needed is when a person has Alzheimer’s disease, has a chronic illness and is in and out of a medical setting, before a person is undergoing surgery in case there is a medical complication, or when a person needs assistance making medical decisions for them because they do not have the mental capacity to do so themselves. 

Living Will

A Living Will is also referred to as a Directive to Physicians, Health Care Directive and Physicians Directive. A Living Will is used when a person is incapacitated or unconscious. A Living Will is a legal document that expresses your preferences and directions for life-sustaining procedures and measures. It contains written directions that you give for a loved one to make decisions to communicate your wishes and guides your physician and family about what you want or do not want to sustain your life.  Decisions may include things like feeding tubes, amputation, blood transfusions, and resuscitation decisions, etc.

How is a Power of Attorney or Living Will Different From a Will?

A will is used after someone passes away and is used to express how finances should be managed and divided as well as who should care for children if the parents pass away.

A Power of Attorney and Living Will are used while a person is still alive.

The Process of Writing 

The process of writing both Powers of Attorney is relatively simple and it can be revoked or updated at any time. Each family is unique; it is always recommended to speak with an attorney. They will help you draft the documents to make sure that it complies with your state’s laws and wishes.

Why Update a Power of Attorney and Living Will?

By updating a Power of Attorney and Living Will, you are authorizing someone “to speak”  for you if something happens to you. It ensures that your finances and health will be taken care of by someone you trust and who shares your values. The process of appointing someone can be a difficult decision, but it’s crucial to consider as it ensures that your wishes will be honored should you become incapacitated and are not able to make decisions. 

Life ebbs and flows, so if you change your mind about who should be named to take care of you and your finances, it is always possible to update. Updating your Power of Attorney and Living Will allows you to ensure that wishes will be honored by someone you trust and who shares your values.

Reasons why someone may update may include:

  • If someone predeceases you and they were named 

  • If there is a falling out or other issues arise where you no longer feel comfortable having the relative or friend you named. For instance, during or after a divorce or separation, documents should be reviewed and updated.

  • If you named someone and they moved across the country, but another trusted family member or friend is now nearby it would be best in case an emergency arises.

Published by Jill Roth-Gutman

Jill Roth-Gutman is a Child Welfare Law Specialist, certified by the National Association of Counsel for Children, a credentialing organization approved by the American Bar Association. She provides New Jersey Division of Child Protection and Permanency (DCPP, formerly, DYFS) consultations to resource parents, family members and potential foster and foster-to-adopt parents as well as completes DCPP Adoption. She also specializes in Adult Child Guardianships, writing Power of Attorney and Living Wills. Ms. Roth-Gutman is available as Guardian ad Litem (GAL) in contested child custody cases and as a Court Appointment Attorney for Alleged Incapacitated Persons in Guardianships. Ms. Roth-Gutman is a proud member of the Burlington County Bar Association, Camp to Belong River Valley Recruitment Committee, and sits on the Camden County Workforce Development Board's Youth Investment Council Committee.