For your convenience, we have provided answers to frequently asked questions regarding estate planning, guardianships, conservatorships, probate, wills, trusts, and trust administration.

What is an Advance Directive for Health Care?

Oregon adopted an Advance Directive for Health Care (ADHC). The statute provides a form document that allows a client to make decisions regarding both end-of-life care and life support issues, and to create a basic power of attorney for health care issues. Under the ADHC, an appointed health care representative holds authority over all the principal’s health care that the principal would have if incapacitated.

What is required for a valid Advance Directive for Health Care?

The ADHC requires two witnesses. The health care representative, alternate representative, and the attending physician cannot serve as witnesses. The health care and alternate representatives sign the form agreeing to accept the appointment. The principal can revoke either the ADHC or a specific health care decision, in writing or otherwise.

What are the limitations of an Advance Directive for Health Care?

The health care representative has the authority to make health care decisions when the principal’s attending physician (or a court) determines that the principal cannot make and communicate health care decisions. The ADHC provides no authority relating to mental health treatment, convulsive treatment, psychosurgery, sterilization, and abortion. The health care representative also does not have authority over life-sustaining procedures unless specifically granted authority in the form. The authority also likely excludes issues related to organ donation, autopsy, and experimental treatments. Additional documents may be required for these situations. The ADHC provides a useful tool to discuss end-of-life care. It encourages the person and their trusted decision-makers to discuss issues that are often difficult, such as death and dying.

What is a Durable Power of Attorney?

Durable Power of Attorney (DPA) is a legal document that grants authority to an agent to act on your behalf on a variety of issues, including financial matters, property management, and government benefits. A DPA is a valuable tool for assisting a person during disability but can be dangerous in the wrong hands. On one hand, a DPA allows a person to delegate to another the power to manage his or her affairs regardless of the principal’s disability or incapacity. This power is very personal and individual. Knowing that daily operations can be handled if disability or incapacity occurs can be a great source of comfort and relief for a client. On the other hand, giving someone complete control over your daily life creates a significant risk of abuse. It is important to use care when granting a power of attorney to an agent.

What are some important aspects of a Durable Power of Attorney?

When preparing a DPA, a client should take into account the abilities of the proposed agent, the level of trust between the principal and agent, and the circumstances that trigger the use of the DPA. The client must make decisions on whether the DPA takes effect immediately or upon disability, whether to grant authority to make gifts, and whether the DPA limits the agent’s authority by time or scope. Answers to these questions will depend on the circumstances of each client.

In addition to considering the effective date, gift powers, and scope of the DPA, the client should consider two statutes that affect its use. First, a DPA is not revoked at the moment of death, but at the time when the principal’s death becomes known to the agent or third party. If you are acting under a DPA, once you become aware that a person has died you can no longer act under the DPA. Any third party who has not received actual notice of revocation of a power of attorney or death of the principal is not liable for actions taken in reliance on the power of attorney.

Second, a person may not refuse to honor a power of attorney based on the passage of time since the power of attorney was executed. In our practice, we occasionally deal with financial institutions that refuse to honor an otherwise valid DPA that is more than two years old. A reference to the statute generally resolves the matter.