Almost every difficult situation in this publication becomes harder if nobody holds a valid document, and easier if somebody does. A power of attorney signed while there was capacity to sign it does the work of a court proceeding that would otherwise take months. This subject covers what those instruments do, the standard capacity is judged against — which is task-specific rather than global — and what is left when the moment to sign has passed.
A person with capacity may revoke a power of attorney or an advance directive at any time. Revocation is generally made in writing and, in the case of documents affecting property, may need to be recorded where the original was. The critical step is notice: agents and third parties who act without knowledge of a revocation may be protected, so the practical work is telling every institution and recovering every copy that exists.
Institutions refuse powers of attorney because the document is old, because it lacks a specific power they require, because it is a copy rather than an original, because their own form exists, or because staff are cautious about liability. Many jurisdictions now impose consequences for unreasonable refusal, and most obstacles are removed by asking for the reason in writing, escalating past the counter, and addressing the specific objection.
An attorney-in-fact owes fiduciary duties: to act in the maker's interest rather than their own, to keep the maker's property separate from their own, to keep records adequate to account for what was done, to act within the authority granted, and to avoid conflicts. Breaches are frequently committed innocently, by relatives who mix funds or make gifts they assumed were expected. The exposure is personal and can extend well beyond repayment.
An immediate power of attorney is effective on signature. A springing one takes effect only when a defined event occurs, usually a determination of incapacity. The springing version sounds safer but requires somebody to establish that the trigger has occurred before anything can be done, which introduces delay, medical certification and institutional scepticism at precisely the moment speed matters. Most practitioners recommend an immediate power with a trusted agent.
An advance directive combines an appointment and an instruction. The appointment names an agent to make healthcare decisions when the maker cannot, and covers situations nobody predicted. The instruction records preferences about treatment in defined circumstances, most often at the end of life. The appointment does the greater share of the work, because real medical situations rarely match the scenarios a written instruction describes.
The choice of agent determines whether these documents work. The criteria that matter are availability, reliability with money, the ability to withstand pressure from other family members, willingness to take the role, and enough understanding of the maker's values to decide as they would. Birth order, proximity and fairness between children are poor bases. Naming alternates matters, and naming two people jointly frequently creates deadlock rather than balance.
Capacity is not a global status. It is assessed in relation to a specific decision, at the time the decision is made, and the standard varies with the complexity and consequences of what is being decided. Somebody may be unable to manage a portfolio and perfectly able to decide where to live or whom to appoint. A diagnosis of dementia does not by itself establish incapacity, and fluctuating conditions require the question to be asked again.
A power of attorney authorizes a chosen person to act on somebody's behalf in financial and legal matters. A durable one continues to operate after the maker loses capacity, which is the whole point of having one. It grants authority without removing the maker's own, ends automatically on death, and does not cover healthcare decisions, which require a separate document. The powers granted are only those the document actually confers.
When somebody loses capacity without having appointed anybody, decisions require a court-appointed guardian or conservator. The process involves an application, notice to the person and to relatives, an evaluation, a hearing at which the person is entitled to representation, and continuing supervision afterward. It is slower and more expensive than the documents it replaces, it is a matter of public record, and it removes rights from the person concerned.
An advance directive is a statement by a person about what they would want and who should decide. A portable medical order is an instruction signed by a clinician, addressed to emergency and treating staff, that is acted on immediately. Directives guide decisions in hospital; orders govern what happens in an ambulance or a care facility at three in the morning. Somebody with a serious illness generally needs both.
Capacity is determined by whoever needs to act on it, for the purpose in front of them. Clinicians assess it for treatment decisions, lawyers satisfy themselves before preparing documents, institutions form their own view for transactions, and courts decide where the question is contested or where a guardianship is sought. A family's belief that a parent has lost capacity has no formal effect, and a diagnosis is evidence rather than a determination.
