Unforeseen life events, such as an injury or illness, can suddenly impair your ability to make important financial and medical decisions for yourself. It’s crucial to plan and appoint someone you trust to make these decisions on your behalf should an emergency render you mentally incapacitated.
Understanding how to get an emergency power of attorney can help ensure that loved ones and healthcare providers respect your wishes when you can’t act for yourself. You can also help your family avoid disagreements and legal complications that may arise without explicit instructions.
What Is an Emergency Power of Attorney?
An emergency power of attorney document allows another person to make certain decisions on your behalf in case of an emergency. It’s also known as a springing power of attorney because it springs into action or becomes effective upon a particular event as specified, such as a medical emergency or an accident.
The person obtaining an emergency POA to grant permissions is the principal, and the party authorized to make decisions is the agent. The amount of authority granted to an agent depends on the principal’s specific needs. These powers can be limited or general, depending on how you, as the principal, would like to handle your matters.
The agent’s authority can also be temporary or permanent, depending on the event that triggers the POA. For example, an emergency power of attorney could become effective upon a spouse’s incapacitation from an accident but later be revoked when they recover.
What Happens Without an Emergency POA?
Without an emergency POA, default state laws will dictate who can make decisions for an incapacitated person. This protocol may result in family disagreements and legal complexities, so creating an emergency POA can clarify matters and minimize disputes.
When to Create an Emergency Power of Attorney
You must create an emergency power of attorney while you’re still mentally competent. The best time to make one is when you’re still healthy, and an emergency hasn’t yet occurred.
For example, consider someone who is going into the military. They can create an emergency POA before getting deployed, allowing an appointed agent to act on their behalf in case of their disability or mental incapacitation during deployment.
Alternatively, you can make an emergency POA in reaction to a diagnosis. For example, consider someone who receives a diagnosis of amyotrophic lateral sclerosis (ALS). If they are still mentally competent, they can make an emergency POA that activates their agent’s powers if they experience an acute medical event that impairs their decision-making or can no longer communicate effectively.
Ensure the Decision Is Voluntary
The decision to get an emergency power of attorney is voluntary. The principal should only make this decision when they’re mentally competent. No one should influence their decision on who to choose as their agent and what powers to grant and restrict.
What If I Need an Urgent Power of Attorney for Someone in Critical Condition?
Unfortunately, it’s not possible to obtain an emergency power of attorney or any other type of POA for someone who is incapacitated. If your loved one is in a critical condition, you’ll need a doctor’s diagnosis to determine if they’re mentally sound to make such a decision.
You can explore alternative avenues to obtain power of attorney for someone already incapacitated, such as conservatorship or guardianship. These allow the court to appoint an agent they deem fit, but the process may take a while and present delays.
How to Obtain an Emergency Power of Attorney
Step 1 – Learn Your State’s Laws
The laws and requirements for signing a springing power of attorney differ from state to state. Before obtaining and signing any documents, read and understand your state’s laws. This ensures you’re doing everything by the book and will prevent any legal troubles ahead.
If you obtain a POA without learning the laws first, you risk wasting time and creating a null and void POA.
Step 2 – Choose an Agent
Giving someone legal authority to make medical and financial decisions on your behalf requires thoughtful assessment and consideration. Ensure that the agent you choose is trustworthy, capable of representing your best interests, and shares your values. Confirm that they’re willing to accept the responsibility of being your agent.
Most people choose their spouses, adult children, parents, siblings, or other close family members to act as agents. You may also appoint a licensed attorney or any other trusted individual. While you should confirm other requirements in your jurisdiction, the agent must fulfill the following minimum criteria:
- Be 18 years of age or above
- Be of sound mind
- Be willing to serve as a fiduciary and protect your rights
Depending on the situation, you can have multiple agents by naming co-agents or a successor agent.
Step 3 – Fill Out a Template
Create the emergency POA document by downloading a template form and filling out the necessary details. Be as specific and detailed as possible, especially when stating that a medical provider must confirm your incapacity before an agent can act on your behalf. Note any limitations on your agent’s authority.
If you’re unsure about any aspects of such a document, seek legal advice from a legal professional before signing.
Step 4 – Seek Signatures and Notarization
Your state laws may require you to sign the emergency power of attorney form in the presence of a notary, witnesses, or both. Find out if this is a requirement and seek signatures and notarization to activate your POA. Some states may also require you to provide copies of the document to the chosen agent and other potentially involved parties, such as healthcare professionals.
Be Proactive in Securing an Emergency POA
Creating an emergency power of attorney ensures that you can designate an agent to handle your legal, financial, or medical affairs in the event of unforeseen incapacitation. By writing this document in advance, you can avoid the need for your loved ones to seek guardianship or conservatorship through the court system following sudden accidents or illnesses.
Taking the initiative to set up an emergency POA lets you manage your affairs with a structured approach and ensures that your chosen representative can act on your behalf when necessary.
Other Legal Documents to Consider
Durable Power of Attorney
Grants an agent the authority to handle your financial and legal matters if you're incapacitated.
Medical Power of Attorney
Assigns a person to make medical decisions on your behalf if you can't make them yourself. Allows you to grant a broader range of medical decision-making powers than an emergency POA. Can extend beyond the principal's incapacitation.
Do Not Resuscitate (DNR) Form
Outlines your desire to not receive CPR or other life-saving measures if you stop breathing or your heart stops.
Living Will
Lets you record your preferences for healthcare in certain situations. For example, you can use it to specify what medical treatments you do and don't want.
Advance Healthcare Directive
Is a broad document that includes your healthcare wishes, including your medical power of attorney and living will.
