Starting September 1, 2027, new rules will apply to health care powers of attorney. Do you already have one? If so, it’s worth reviewing it. Don’t have one yet? Then this is the perfect time to get one set up.
We’d be happy to tell you what you need to know regarding the changes to the law. For a more general explanation of how a healthcare proxy works, please refer to our article: The health care proxy: decide now for when things don't work out.
Recap: What Is a Health Care Power of Attorney?
Suppose, due to an accident or illness, you are no longer able to make decisions about your assets or your business on your own. Who will handle your affairs? And how? With a power of attorney for healthcare You decide that yourself: not a court or a stranger, but someone you trust, within the boundaries you set.
A health care proxy is one of the tools available to you business continuity planning: something to think about today, so that you, your family, and your business are protected when the time comes. Don't have a health care proxy yet? Then we recommend that you seriously consider getting one.
Two Types of Agents
The person authorized to handle your affairs is called the ‘trustee‘. Until now, there has been little legal framework for agents appointed in a healthcare power of attorney. Effective September 1, 2027, every agent must fall into one of two categories: family-related or professional. The goal of the reform: to better protect vulnerable individuals from abuse.
1. The family representative
This is a wide circle of people who are close to you:
Have you designated someone like that? If so, nothing will change.. There are no additional rules for this category.
2. The Professional Agent
Anyone who is not considered a family member (such as an accountant, lawyer, financial advisor, or notary) must stricter requirements meet the requirements. Note the nuance: if your son happens to be an accountant and you hire him, he remains a family member. An accountant with whom you have a long-standing relationship of trust can also be considered a family member in that context. The assessment is based on the relationship you really maintains with the agent, not solely on the basis of the profession.
In order to be authorized to act as a professional agent, a person must henceforth be registered with a official national registry. To do so, he must, among other things:
Without registration, a professional agent will be able to, after September 1, 2027 no longer act in a legally valid manner.
If your preferred advisor does not meet the requirements for a family member or professional representative, you can appoint him or her as advisor or confidant in the healthcare power of attorney. In that role supports and he advises your family representative without the registration requirements applying. This way, you benefit from his expertise without the formalities.
When do the new rules take effect?
The new law takes effect on September 1, 2027 and applies to all health care powers of attorney that take effect after that date. It is not the date you sign the health care power of attorney that matters, but the date your professional agent signs it used effectively — and only if that happens within the context of your incompetence. If your health care power of attorney is already in effect while you are still competent, these rules do not apply.
Specifically: If your professional representative goes to the notary on your behalf to sell a home after you have become legally incapacitated, the notary will first check whether that person is listed in the registry. If not, the representative cannot act on your behalf.
What does this mean for your existing health care power of attorney?
The new law is a good opportunity to existing health care power of attorney to take another look at it:
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Two points to note:
Don't have a health care proxy yet? Get started
The legislative change has little impact on most existing health care powers of attorney, but it does remind us of something more important: just how valuable a health care power of attorney is for protecting yourself, your family, and your business.
Don't have one yet? Then you don't have to wait until 2027: today is always the best time to start.