ASSIGNING EMERGENCY POWERS

First published in Newsday Ask the Expert column on March 29, 2008.

The Problem: My friend Mary recently suffered a stroke that left her mentally incapacitated in a nursing home. A few years ago, she named me as her healthcare agent and her attorney in fact. Will the court appoint a guardian for her now?

The Expert: Linda M. Toga, estate planning and elder law attorney, East Setauket.

The Rules: No. The existence of a health care proxy and a durable power of attorney naming competent, qualified adults who are willing and able to make decisions on behalf of an incapacitated individual usually negates the need for a court-appointed guardian.

How it Works: Assuming that the health care proxy and the power of attorney that Mary signed are valid, unambiguous and properly drafted and executed, you now have the authority to make decisions about Mary’s medical care and her assets.

The Strategy: If Mary’s health care proxy states that you have authority to make decisions about, or are aware of Mary’s wishes regarding artificial nutrition, hydration and cardiopulmonary resuscitation, you can refuse these procedures on Mary’s behalf. Similarly, if the health care proxy states that you can make decisions concerning organ donation, you have the authority to donate Mary’s organs.

As for Mary’s assets, when Mary signed the power of attorney, she indicated which types of transactions you had authority to conduct. She could have given you the authority to deal with all financial matters - from banking transactions to the sale of real estate to engaging in estate planning on her behalf. Assuming you are competent to act as Mary’s agent, and you have the authority under the power of attorney to conduct all of the different types of transactions needed to manage and protect Mary’s assets, there is no reason for a court to appoint a guardian to handle Mary’s affairs.

The Results: By having the foresight to execute a health care proxy and power of attorney, Mary not only avoided the time and expense of a guardianship proceeding, but she insured that her assets will be protected and her wishes with respect to end of life care will be honored.