Finance
Instrument: Power of attorney (POA)
What is it for?
The power of attorney (POA) allows an adult (the “principal”) to authorize one or more “agents” to make financial decisions on his or her behalf. Generally, the POA does not cover health care decisions. Me. Rev. Stat. Ann. tit. 18-C § 5-903(2).
What does it do?
Unless stated otherwise in the POA, agents are generally presumed authorized to take certain types of actions, such as contracting or suing on the principal’s behalf or accessing communications intended for the principal. Me. Rev. Stat. Ann. tit. 18-C § 5-933 et seq. The POA is presumed to be “durable” (i.e. presumed to survive the principal’s incapacity) unless it expressly provides that it is terminated by the incapacity of the principal. Me. Rev. Stat. Ann. tit. 18-C § 5-904.
In exercising the authority granted by the principal, an agent also must act loyally, avoid conflicts of interest, and act with care, competence, and diligence consistent with a fiduciary duty. An agent is not liable if the principal’s property declines as a result of the agent’s actions absent a breach of this duty. Me. Rev. Stat. Ann. tit. 18-C § 5-914.
Third parties are generally obligated to accept decisions by an agent pursuant to a POA, unless they have a good faith reason for refusing to do so, such as a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation or abandonment by the agent or a person acting for or with the agent and the person makes, or has actual knowledge that another person has made, a report to the Department of Health and Human Services regarding such beliefs. Me. Rev. Stat. Ann. tit. 18-C § 5-920(2). A third party may, for example, request the agent to provide a certification of the agent’s authority. Me. Rev. Stat. Ann. tit. 18-C § 5-920(1). Maine’s statute provides a certification form at Me. Rev. Stat. Ann. tit. 18-C § 5-951.
How does one make it?
A POA must be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name. The signature must also be notarized. Me. Rev. Stat. Ann. tit. 18-C § 5-905(1). The POA document must also contain certain notices to the principal and the agent that substantially conform with those provided at Me. Rev. Stat. Ann. tit. 18-C § 5-905(2).
When does it come into effect?
A POA is effective when executed unless the principal provides in the POA that it becomes effective at a future date or upon the occurrence of a future event or contingency. Me. Rev. Stat. Ann. tit. 18-C § 5-909(1). If a POA becomes effective upon the principal’s incapacity, the principal may authorized a specific person to determine whether the principal is incapacitated. If not, then the POA becomes effective upon a written determination of incapacity by a physician or an attorney, judge, or another appropriate government official. Me. Rev. Stat. Ann. tit. 18-C § 5-909(3).
For the purposes of an incapacity determination, “incapacity” is defined means inability of an individual to effectively manage property or business affairs because the individual is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause to the extent that the individual lacks sufficient understanding, capacity or ability to receive and evaluate information or make or communicate decisions regarding the individual’s property or business affairs. Me. Rev. Stat. Ann. tit. 18-C § 5-902(5).
How long does it last?
The POA generally lasts until either the principal revokes it; the principal dies; the agent dies or becomes incapacitated or resigns; or upon the POA’s termination date, if one is provided. Me. Rev. Stat. Ann. tit. 18-C § 5-910(1). Note that the execution of a subsequent POA does not automatically revoke any prior POA unless the subsequent POA expressly states that the prior POA(s) is/are revoked. Me. Rev. Stat. Ann. tit. 18-C § 5-910(6). Nor does a court’s appointment of a guardian terminate a POA unless expressly provided by the court. Me. Rev. Stat. Ann. tit. 18-C § 5-908(2).
How does one end it?
An agent may also resign by giving notice to the principal. Me. Rev. Stat. Ann. tit. 18-C § 5-918.
What does an example look like?
Maine does not provide a statutory POA form.
What else should one know?
Maine’s POA is based on the Uniform Power of Attorney Act.
Last updated April 2021
Education
No information available at this time.
Health
Instrument: Power of attorney for health care (POAHC)
What is it for?
Maine’s Uniform Health Care Decisions Act recognizes a “power of attorney for health care” (POAHC) which allows an adult with “capacity” to designate another person (the “agent”) with capacity to make health care decisions for the individual granting the power.
“Capacity” is defined as the ability to have a basic understanding of the diagnosed condition and to understand the significant benefits, risks and alternatives to the proposed health care and the consequences of forgoing the proposed treatment, the ability to make and communicate a health care decision and the ability to understand the consequences of designating an agent or surrogate to make health care decisions.
What does it do?
An adult or emancipated minor with capacity may execute a power of attorney for health care, a type of advance health care directive, which may authorize the agent to make any health care decision the principal could have made while having capacity. Health care decisions that an agent may make on another’s behalf include:
A. Selection and discharge of health care providers and institutions;
B. Approval or disapproval of diagnostic tests, surgical procedures, programs of medication and orders not to resuscitate; and
C. Directions to provide, withhold or withdraw artificial nutrition and hydration and all other forms of health care, including life-sustaining treatment. Me. Rev. Stat. Ann. tit. 18-C § 5-802.
An agent shall make a health care decision in accordance with the principal’s individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent’s determination of the principal’s best interest. In determining the principal’s best interest, the agent shall consider the principal’s personal values to the extent known to the agent. Me. Rev. Stat. Ann. tit. 18-C § 5-803(5). Even where an agent makes a decision for someone pursuant to a POAHC, a supervising health care provider, if possible, shall promptly communicate to the patient the decision made and the identity of the person making the decision. Me. Rev. Stat. Ann. tit. 18-C § 5-808(1).
Health care providers are generally obliged to abide by an agent’s decision as if they were made by the patient him or herself. Me. Rev. Stat. Ann. tit. 18-C § 5-808(5). However, they are not obligated to do so if they believe that the patient lacked capacity at the time of executing the POAHC. Me. Rev. Stat. Ann. tit. 18-C § 5-810.
How does one make it?
The POAHC must be in writing and signed by the principal and 2 witnesses. Notwithstanding any law validating electronic or digital signatures, signatures of the principal and witnesses must be made in person and not by electronic means. The power remains in effect notwithstanding the principal’s later incapacity and may include individual instructions. Unless related to the principal by blood, marriage or adoption, an agent may not be an owner, operator or employee of a residential long-term health care institution at which the principal is receiving care. Me. Rev. Stat. Ann. tit. 18-C § 5-803(2).
When does it come into effect?
Unless otherwise specified in the POAHC, the authority of an agent becomes effective only upon a determination that the principal lacks capacity and ceases to be effective upon a determination that the principal has recovered capacity. Me. Rev. Stat. Ann. tit. 18-C § 5-803(3).
Unless otherwise specified in a written advance health care directive, a determination that an individual lacks or has recovered capacity or that another condition exists that affects an individual instruction, the authority of an agent or the validity of an advance health care directive must be made by the primary physician, by a court of competent jurisdiction or, for an individual who has included a directive authorizing mental health treatment in an advance health care directive, by a person qualified to conduct an examination in the event of an emergency. Me. Rev. Stat. Ann. tit. 18-C § 5-803(4).
How long does it last?
Presumably, until an individual dies or revokes the POAHC.
How does one end it?
An individual with capacity may revoke the designation of an agent only by a signed writing or by personally informing the supervising health care provider. Me. Rev. Stat. Ann. tit. 18-C § 5-804(1). A health care provider, agent, guardian or surrogate who is informed of a revocation by an individual with capacity shall promptly communicate the fact of the revocation to the supervising health care provider and to any health care institution at which the patient is receiving care. Me. Rev. Stat. Ann. tit. 18-C § 5-804(3).
What does an example look like?
Maine’s Uniform Health Care Decisions Act provides an optional form at Me. Rev. Stat. Ann. tit. 18-C § 5-805. The Maine Hospital Association has developed a form that is available here.
What else should one know?
A supervising health care provider who knows of the existence of an advance health care directive, a revocation of an advance health care directive or a designation or disqualification of a surrogate shall promptly record its existence in the patient’s health care record and, if it is in writing, shall request a copy and if one is furnished shall arrange for its maintenance in the healthcare record. Me. Rev. Stat. Ann. tit. 18-C § 5-808(2).
A health care provider or health care institution may not require or prohibit the execution or revocation of an advance health care directive as a condition for providing health care. Me. Rev. Stat. Ann. tit. 18-C § 5-808(8).
Last updated April 2021
General
No information available at this time.