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Basic Incapacity Documents

Durable Power of Attorney

A Durable Power of Attorney allows you to name another person or persons to sign your name and perform acts on your behalf.  This person is called your "attorney-in-fact."  Examples of acts your attorney-in-fact may perform include accessing your bank accounts, paying bills, managing your investments, and selling real estate.  Your Power of Attorney is effective upon signing and is valid until death or revocation.  If you appoint more than one attorney-in-fact, each can act independently of the other, meaning that they do not need to act together.  You should keep in mind that third parties are not required to honor this document simply because it is legal, because there is no law regarding its enforceability.  However, most will accept a validly – executed, thorough and current Power of Attorney.

Health Care Proxy

A Health Care Proxy allows you to appoint someone, called your "health care agent", to make health care decision for you.  By law, a physician must declare that you are incapable of making medical decisions, even if only on a temporary basis, before your agent can have any authority.  This document does not specify what your wishes are, but rather names the person who will make your medical decisions.  Health Care Proxies are extremely important if it becomes necessary to make decisions concerning termination of life support.

Living Will

This is a companion to the Health Care Proxy.  Whereas the proxy names the individual you wish to make the decisions, the Living Will expresses in writing your wishes with respect to end-of-life decisions.  Although not legally enforceable in Massachusetts, this is a helpful document because it provides evidence of your wishes for your family and any other interested their party (e.g., a hospital, a court). It should be noted that  "DNRs" and  "MOLSTs" are a doctor's orders and not a legally-derived document.  MOLSTs (Medical Orders for Life Sustaining Treatment) are in the process of replacing the DNR in the medical community.

HIPAA Release Designation

The Health Insurance Portability and Accountability of 1996 (HIPAA) contains privacy regulations which require virtually every physician, dentist, nurse, pharmacist, laboratory, and health care provider in the nation to limit access to confidential medical records and information.  In order for your family members, friends, and/or designated health care agent to obtain individually-identifiable health information about you, you must specifically authorize disclosure to these people as well as release of the information in writing.

Parental Appointment of Guardianship for Minors

This document allows you to name temporary guardians for your minor children in emergency situations. This document does not require any Court appointment or authority, but is only valid for 60 days without court involvement.  Normally the Guardian named in your Will takes over when that 60-day period ends, if the emergency predicating use of this document is your death.

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