Opinion | Robbins: Powers of attorney

Recently, a reader wrote to me.

What he wrote to me about is now the subject of this column.

What he shared was a frightening issue his family experienced when his then 25-year-old unmarried daughter suffered a ruptured brain aneurysm that resulted in a major brain bleed and massive hemorrhagic stroke.

They were from Illinois, which they were told is one of seven states that have a process in place for family members to make decisions for their loved ones in emergency situations, but their daughter’s medical emergency occurred in Wisconsin where she was working in television news.

After her first surgery, the doctor told the family that their daughter’s pupils were fixed and dilated, a grave situation, which typically may indicate brain death. The family had a conversation with the surgeon who decided to try again and see what he could do.

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According to the hospital officials, the family had no legal right to direct her care — as a woman with no spouse — she was essentially a ward of the state. The doctor ultimately saved her life, but then other much less serious, but nonetheless nettlesome issues arose. For example, the family had no authority to shut off her utilities when she could not live independently in her home for a long period of time during her extended convalescence.

What the reader told me, having just read my recent series about children entering adulthood, is that, even though the newly bloomed 18-year-olds were now adults, it was not end-all and be-all for various legal ills that what might one day ail them.

What then does this have to do with powers of attorney? First, perhaps, what is one?

A power of attorney (“POA” ) is a legal document that gives one person (called the agent or attorney-in-fact) the authority to act on behalf of another person (called the principal) either broadly or in specified matters.

The authority granted can be broad or narrow, depending upon the principal’s desires and the form and extent of the document. For example, an agent may be authorized to conduct certain business affairs on behalf of the principal (for e.g., managing bank accounts and finances, buying or selling property, signing contracts, or engaging in other business activities); or making healthcare decisions for the principal should s/he one day become incapacitated.

Common types of powers of attorney include: general powers of attorney, which give broad authority over the principal’s financial and legal matters; limited (special) powers of attorney, which grant authority only for specific tasks for a limited period; durable powers of attorney, which remain effective even if the principal becomes incapacitated; and medical (healthcare) powers of attorney that authorize the agent to make healthcare decisions when the principal cannot do so for him- or herself.

Although the term “attorney” in powers of attorney may suggest that the agent must in fact be a licensed attorney, that isn’t so; any competent adult a principal appoints (with the agent’s consent) may act within the boundaries of the power granted on behalf of the principal.

A quick example here of a limited power may help: Say you intend to travel abroad and need someone to sell your house while you’re away, you can give that person a limited power of attorney to complete the sale on your behalf.

Generally, a power of attorney usually ends when: the principal revokes it (which s/he may freely do); the principal dies; the document specifies an expiration date; or, in some cases, the principal becomes incapacitated (unless it is a durable POA). The exact rules vary by jurisdiction.

One last thing; why did it matter that the reader’s daughter was unmarried when tragedy struck? First of all, it had nothing to do with her being a woman, the same would have applied had it been the family’s son. The reason, though, was that she (or had it been a he, he) was single.

Although being married does not automatically make one spouse the legal agent of the other (for example, if a spouse becomes incapacitated, the other cannot automatically: access bank accounts titled solely in the incapacitated spouse’s name; sell or transfer that spouse’s separate property; or sign contracts on their behalf), healthcare decisions are often a limited exception. Most states have “surrogate decision-making” laws that prioritize spouses to make medical decisions if there is no advance directive. This exception, however, is limited to healthcare and can be overridden by prior contrary documents giving health decision agency to one other than the spouse. Had the reader’s daughter been married, it is likely that at least a limited healthcare power would have been conferred upon her spouse.

Thankfully, all turned out well for the reader and his family, and it is my understanding that his daughter has made great and determined strides to regain full health and function. A word to the wise, however; have your legal ducks in a row. While the big, wide world is most times wonderful, the unexpected, sadly, sometimes lurks.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels are available at fine booksellers; the latest, “Falling,” was published in November.