Do you want to give your decision maker in your health care power of attorney, or your durable power of attorney that includes health care decisions, the authority to limit, restrict or prohibit contact between you and any other person, without prior court approval? Well, now you can!
Nathan Hannah, Attorney
I’m told that this new addition to the laws governing health care powers of attorney arose out of the sad case of Casey Kasem, the disc jockey of American Top 40 fame who died in 2014. The story is that his second wife and his children from his first wife had a long-running dispute over who could visit him, and control where he was housed, while he was dying of Parkinson’s Disease.
Did you know that Casey Kasem was the voice actor of Shaggy in the Scooby Doo cartoons?
Anyway, the point is that sometimes families get into disputes over who should or should not have access to an elderly, incapacitated family member. I’ll put my cards on the table right now: there might be good reasons to restrict certain individuals’ access to an elderly, incapacitated family member, but I can’t think of very many.
I also think that unless there is really good reason for keeping certain individuals away from you if you become incapacitated, giving your decision maker the ability to control who can visit you in those circumstances is a recipe for conflict. I’m not saying don’t do it, period. I’m just saying don’t do it unless there is a really good reason, and do it in such a way to make the decision maker’s authority as narrow as possible.
So if you have a really good reason, your power of attorney can have a provision that says something to the effect that your agent (that’s your decision maker) has the authority to prohibit or restrict contact between the principal (that’s you) and another person. I suggest that if at all possible you should specify the other person or persons whose access is to be prohibited or restricted, and if restricted, what those restrictions will be.
The new law that allows these provisions in your power of attorney also sets out procedures for going to court over the dispute that will almost inevitably result when your agent attempts to implement such provisions.
My guess is that very few powers of attorney deal with the circumstances in which poor Casey found himself in his last illness. Given the apparent intensity of that dispute, I have no doubt that there would have been court proceedings regardless of any provisions in any power of attorney he may have signed. That’s why I suggest that you think carefully about it, and have a really good reason, before you ask your estate planner to include provisions in your power of attorney that give your decision maker the ability to prohibit or restrict contact between you and any other person.
- Nathan B. Hannah is a Shareholder in the Tucson office, and practices in the areas of estate planning and administration, real estate, and commercial transactions. He is also a noted blogger, and you can find more of his articles on his private blog,
Contact Attorney Hannah: nhannah@dmyl.com or 520/ 322-5000
This communication is designed to bring legal developments of interest to the attention of our clients and others. It should not be relied upon as a substitute for specific legal advice in a particular matter. For further information on any of the subjects discussed, or for legal advice in connection with any particular matter, please contact us.
