I am concerned about the problems that disability or deportation can create for a person and his or her family. Statistics indicate that throughout most of a person’s life, he or she, at any given time, is more likely to suffer a fairly serious disability than to die. Any disability, whether physical or mental, can cause serious problems, but a mental disability can be more serious because if it is severe, it can result in a loss of the right to make contracts, important decisions and other legal rights. The loss of legal rights under these circumstances is not intended to be punitive. Instead, the purpose is to protect a mentally incapacitated person so that some other person cannot take unfair advantage during the period that the incapacity exists. The issue of deportation can be just as sever. Once detained, the issues of taking care of the children, paying the bills and collecting a paycheck can become impossible, especially if you are not married.
However, the loss of legal rights for purposes of protecting an incapacitated person also creates a problem. If the incapacitated person cannot act or make decisions or agreements, then who can act in such person’s behalf? If it becomes necessary for someone to have the legal authority to act, then such a person must be appointed by a court as a “conservator” or a “guardian” to handle property or custody of the person. Such a procedure is frequently costly, time-consuming, burdensome and may not be available if you are removed.
It is possible to create an arrangement which in many cases will avoid the costly, time-consuming and burdensome legal procedures to appoint a conservator and a guardian. By using a special kind of power of attorney called a “durable” power, you may select the person or persons you want to act for you as your “agent” should you become incapacitated. Detained or unable to return to the United States has been added as incapacitation for the purposes of a power of attorney in the State of Ohio.
Durable powers can be used for a variety of purposes. Your agent, named in your durable power, can manage your property for you should you become incapacitated, or can transfer some or all of your property to a trust you created for yourself (and perhaps others). In fact, your agent can even create a trust for you and put your property in that trust if you desire. In such event, the trustee would manage that property, rather than your agent.
Your agent can pay your bills, sign your tax returns, employ doctors and nurses for you and consent to medical treatment for you. If the possibility concerns you that your life might be artificially prolonged by medical means under circumstances in which you might be unconscious or in severe pain with no reasonable medical possibility of recovery, you may wish to authorize your agent to refuse for you such life-prolonging measures and to require for you any lawful measures to relieve pain and make you more comfortable.
The “agent” you select to act under a durable power may be your spouse, adult children, a doctor, a member of the clergy, a business associate, or other friend or relative. You may even consider different persons for different functions. For example, one person might serve as agent for property management purposes. This will ordinarily require the use of more than one document, but it is entirely permissible. About the only important requirements are that your agent be an adult with the highest standards of integrity and mature judgment. Such standards are important because a power of attorney is susceptible to abuse.