What Are Powers of Attorney, and Why Do You Need Them?

an Eau Claire attorney answers questions about some vital documents you should have

Tom Giffey

It’s no exaggeration that most of of would rather think of anything else than about making challenging end-of-life decisions. But those decisions inevitably will have to be made – either by ourselves or by others – and planning ahead can provide peace of mind and prevent future confusion and difficulty.

In an upcoming episode of the new podcast Journey Ahead: Aging Well in the Chippewa Valley, Lisa Wells of the Eau Claire County Aging and Disability Resource Center chats with Eau Claire attorney Peter Grosskopf about a variety of end-of-life legal issues. In this excerpt from the podcast, Grosskopf addresses the difference between a health care power of attorney and a financial power of attorney, and why you need both.

Lisa Wells: From your experience, why do people put off planning ahead?

Peter Grosskopf: I think part of it is just normal inertia. You know, procrastination. They don’t want to deal with it. Thinking about having dementia or thinking about requiring a power of attorney to manage your affairs is not something pleasant. So it’s easy to put off.

I know when I was talking about it with my family years ago. Then it was more like, “Well, if we talk about it, then it’s going to happen,” right?

There’s a lot of people who say that about wills, too, that they don’t want to do a will because it’s sort of like opening the door to death, which is, really not true at all, of course.

Let’s talk a little bit about who really needs a power of attorney. Do we need it when we get older? Do we need it like when we get sick? Who who really needs one?

I usually tell people that pretty much everyone over the age of 18 ought to have powers of attorney. And those include both health care or medical power of attorney as well as financial power of attorney. And one thing to remind people is there’s been a lot of famous cases about people who did not have powers of attorney – for example, Karen Ann Quinlan, Terri Schiavo, among others – and those were all very young people who had not done any advance planning and wound up in terrible medical conditions that lasted for years and years and went through the courts for years and years.

So anybody over the age of 18 should have a power of attorney for health care and finance. Let’s talk a little bit about what’s the difference?

Well,  the difference basically is the health care power of attorney, like it sounds, is for making health care or medical decisions. You can appoint an agent who can make those decisions for you. The financial power of attorney is to manage finances, and it has evolved over the years. It used to be that the financial power of attorney was limited to kind of specific circumstances, such as selling the house long distance when you couldn’t be on location, things of that nature. But it’s evolved into what’s called a durable power of attorney, and what the “durable” part simply means is that it’s intended to remain in effect even after a person becomes incompetent. That has become extremely important now for planning for dementia, planning for that period of time when a person is not able to manage their finances. But equally important, I’ve got a lot of my older clients who simply don’t want to manage their finances anymore. They’re still competent. They just don’t want to do it. So they’d like to have somebody step in and help.

So what are some questions on the power of attorney for health care?

One of the important questions is, do you want to give your agent authority to have you admitted to a nursing home or community-based residential facility? And the reason I point that out is a couple of things. No. 1, a lot of people instinctively say, “No, I don’t want to go to a nursing home, so I’m going to check ‘no’ to that.” But you really want to say “yes” to that, because if the time comes when you have to go to a nursing home or a community-based residential facility – like assisted living – then if you’ve said no to that and you’re not able to admit yourself, then the family will likely have to go to a guardianship and protective placement, which is a court procedure, which is much more time-consuming, it’s much more expensive, and it can be ongoing for years and years. So that’s why you really want to say “yes” to that.

The other reason I point that out is because the Wisconsin power of attorney asks that question, but you could go to another state, for example, Minnesota or Illinois, and get a perfectly fine health care power of attorney from those states that simply don’t work in Wisconsin because they don’t ask those questions. Other questions that are asked in the health care power of attorney would be, for example, whether or not you want nutrition when the time comes, when you want feeding tubes. And there’s also a spot where you can put down your own statement of your preferences, desires, limitations, or restrictions. So those are some of the things that are asked.

Now we’ve talked about the power of attorney for health care. Can you talk about power of attorney for finance? And then the next question would be, there’s some confusion between power of attorney for finance and living will. Could you talk about the difference?

Let’s talk about the living will first. With the living will, basically, this is a direct statement. From the signer or maker to their health care professionals on certain choices that have been made. In other words, a person can do this living will that says  they don’t want to have fluids or they don’t want hydration, they don’t want feeding tubes, things like that. It’s a direct statement from that maker to the health care providers, and the advantage of that is that nobody has to make a difficult decision at a difficult time because the maker has already made that. The limitation on it is that it’s only usable under two circumstances, which are a terminal condition or a persistent vegetative state. And there are a lot of medical conditions which are neither one. So, for example, a person with Alzheimer’s or dementia typically is not considered to be in a terminal condition or certainly not a persistent vegetative state. And so there the living will would not have any application, in which case the person would really want to have the health care power of attorney. Now, it’s OK to have both the living will and the health care power of attorney, but you want to make sure that they’re not inconsistent with each other.

So you suggest that people should have both.

If a person comes to me with that question, I typically say, if you’re only going to have one, the one you want is the health care power of attorney, because it’s a much broader document, more usable in more circumstances. And that’s the one if you have to go to a nursing home, you want you need that one. So if you’re only going to have one, that’s the one you want. If you want to have both, which is not a bad idea, then certainly you can do both. But again, make sure they’re consistent and the living well.

To hear more of this conversation, as well as other episodes of the Journey Ahead podcast, visit volumeone.org/podcasts or search for Journey Ahead in your podcast app of choice.