Using a Power of Attorney While In Hospice Care

Hospice care can be a difficult position for planning needs. Using a power of attorney to change a will or estate plan in hospice care is hardly ideal. Now add an element of incapacity or duress, and you have a recipe for disaster.

On the other hand, perhaps there are significant reasons, even monetary reasons, that a change needs to occur. My source of truth comes from situations when people have tried and died. Luckily, a well drafted durable power of attorney form can reduce the potential for misery and help our love ones move forward under any moment of stress or condition.

Evidence For Capacity

Evidence for the mental capacity isn’t the first thing a person or family thinks about when visiting their loved one. Capacity isn’t necessarily something that is documented. Some families use medical note and doctor’s opinions. Others utilize eye-witness accounts. Even better, the documents formalized include critical language and sworn by a notary.

Mental Capacity In Hospice Care

In Minnesota, the intent of the person is always a controlling factor. Creating new documents in a hospice care facility is hardly ideal. As an example, let’s assume a court scrubs or scrutinizes a relevant document.

Why?  There was a major Minnesota case called In re Estate of Healy.  Ultimately, this case tells us the testator (the person who died) was required to know the nature and extent of the document they were signing.  If even for a brief second, the person dying and changing their will must have a thought in their mind long enough, that a rational decision was made.

When a power of attorney document or will is reviewed by a court, whether a district court or probate court, the referee is looking at the mental capabilities of the person who had created the document.

Estate Planning Help

Estate Attorney Jasper Berg