E-commerce is seeping into everything these days, including estate planning. Online for-profit companies offer to generate a Power of Attorney document for you, using pre-fabricated forms that you plug your information into without ever consulting an attorney.
On the non-profit side, hospitals and other providers offer form Healthcare Directive documents that you write your information into, at no cost. The State of New Jersey even offers a free form online.
This is all fine, until it isn’t. The problem is that form power of attorney (POA) and healthcare directive documents often are inadequate when you really need them.
A POA and healthcare directive allow your loved ones to manage your affairs if you lose mental capacity, due for example to progressive dementia, Alzheimer’s or a stroke or coma. Once you lose capacity, it’s too late to make a new POA or healthcare directive, so it’s very important to get it right the first time.
Yet most generic form documents I see don’t include important provisions. New Jersey’s proxy directive says nothing about HIPAA privacy rights or visitation rights, which could leave loved ones with no right to access patient information or visit the patient. And I’ve yet to see a POA form document that includes the provisions necessary to do Medicaid planning. In other words, if you use a form POA and lose capacity, your loved ones couldn’t use the POA to preserve your nest egg from long term care costs, which is an important goal for many of our clients.
Everyone should have a healthcare directive and consider a POA, and form documents are better than nothing. But if you lose capacity, then your family will rely on these documents to make things easier during a very difficult time. For something that important, in my view it’s worth consulting an expert who can make sure your goals are met. I wouldn’t trust it to a form.