Adoptive Parent
- As a prospective adoptive parent you need to fully understand the adoption process.
You need to be aware of the potential risks and heartbreaks as well as the happier
moments.
- As a prospective adoptive parent under NH law you can be asked to pay certain
expenses of the birth mother.
- As a prospective adoptive parent or adoptive stepparent you will have certain
responsibilities towards the child you are adopting.
- As a prospective adoptive parent you need to understand how difficult and emotionally
charged a decision this is for the birth parent.
- We are here to assist you in understanding the legal process and your rights and
responsibilities.
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Birth Parent
- As a birth parent thinking about placing your child for adoption you need to
understand that we know how difficult and emotionally charged a decision it can be.
You need to understand that it is ok to have different thoughts on different days. You
need to be comfortable with your choice to place your child for adoption.
- As a birth parent thinking about placing your child for adoption we can help you
understand the process and obtain the legal, emotional, counseling and medical
support you need. It is not a process that you have to go through alone.
- As a birth parent thinking about placing your child for adoption you need to know that
you have choices you can make about the adoptive parents and the degree of
openness of your adoption.
- As a birth parent thinking about placing your child for adoption you need to know that
often the adoptive parents pay your legal, uncovered medical and counseling fees as
well as living expenses. As your legal counsel we still work for you and support any
choice you make. Our goal is not to make sure that you place your child for adoption
but rather that you feel comfortable with your choice, that you are aware of all your
options and that whatever decision you make it was made freely and voluntarily and
without pressure.
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What is adoption: Adoption is a formal legal
proceeding where the birth parents have either
consented to an adoption of their child or
relinquished their parental rights and new parents
(adoptive) are substituted. NH law requires that
an unrelated child live with the adoptive couple six
months before the adoption will be final. During
the first six months the adoptive couple will have
what is called an Interlocutory Decree. It is also during that six month period that the agency doing the home study conducts what are called post placement visits to see how the new parents and the child are doing. Once the post placement visits are completed the agency will file a report with the court recommending finalization of the adoption. The birth certificate with the biological parents names on it is sealed and a new birth certificate is issued with the adoptive couple as the parents.
A stepparent adoption is a formal legal proceeding where one of the biological parents has either consented to the adoption or has had their parental rights terminated and the step parent and the remaining biological parent adopt the child. A new birth certificate is generally issued substituting the name of the stepparent for the name of the biological parent on the certificate. A stepparent adoption is final the day of the adoption.
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Homestudy: In all non-related child adoptions the law requires the adoptive couple to have a home study conducted by a licensed child-placing agency. The cost of the study varies from agency to agency. The purpose of the home study is to determine whether the adoptive home is a suitable home for the child and whether the adoption is in the best interests of the child.
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The birth father won't agree to the adoption: In NH in certain situations a birth mother is not required to name/identify the birth father. In some cases the birth father has the right to be notified about the adoption. In those situations where the birth father needs to be notified he can put a stop to the adoption if he does not agree with it.
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Paternity Registry: If you are a birth father and you believe that a child you have fathered is going to be placed for adoption and you do not agree with the adoption and you want to support the child you can register your name with the Office of Child Support on a form provided by that office.
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What is an open adoption / Are there open adoptions in NH? An open adoption is where the adoptive couple and the birth parent(s) have some type of contact during the process and often after the adoption is final. The level and degree of openness depends greatly on everyone's level of comfort with the open adoption process. Often an open adoption can include meeting the adoptive couple, an ongoing exchange of cards and letters and pictures and sometimes ongoing contact and visits after the adoption is final. Each adoption is different and often as time goes by there is less frequent contact as everyone moves on with their lives.
Under NH law, an adoptive couple once the adoption process is completed is guaranteed an "undisturbed relationship with the child from and after the date of adoption." The law in New Hampshire goes on to state that open adoptions are neither encouraged or discouraged and that any agreements with respect to post relinquishment or post consent exchange of identifying or non-identifying information, communication or contact are not binding or enforceable at law or in equity. Thus open adoptions are not legally sanctioned in NH. However, the law does not preclude the adoptive couple and the birth parent(s) from making their own "side agreement". Any agreement made about exchanging cards, letters, pictures, etc. is not enforceable through the court should any party decide not to follow the agreement.
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How are my expenses paid? Under NH law the
adoptive couple can be asked to pay certain
expenses of the natural parent. They include
reasonable counseling, medical and legal fees,
reasonable expenses for transportation, meals,
clothing and lodging incurred for placement of the
child, reasonable expenses for adoption services
provided by an agency, reasonable living expenses
which are necessary to maintain an adequate standard of living which the natural mother is unable to maintain due to loss of income or other support resulting from the pregnancy. Payments can cover expenses incurred during the pregnancy but are not to continue for a period longer than six (6) weeks following delivery of the baby. Typically the expenses are paid directly to the counselor, doctor, lawyer, etc. providing the service.
Contracts between adoptive parents and natural parents to have the natural parents payback money advanced during the pregnancy if the natural parent refuses to consent to the adoption or withdraws their consent are considered under the law in New Hampshire to be void as against public policy.
Remember just because the adoptive couple is paying your legal expenses and counseling expenses it does not mean that the attorney or the counselor is working for anybody but you.
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What is in an at risk placement? Under NH law the earliest any birth parent can sign either a consent to adopt or a relinquishment is 72 hours after giving birth. The reality is it often takes much longer than 72 hours to assemble all the paperwork. The most important thing however is that no birth parent signs anything until they are sure they are ready to sign and comfortable with their decision. Most babies are discharged from the hospital sooner than 72 hours after they are born. An at risk placement is where the birth parent(s) permit the adoptive couple to take the baby home from the hospital and care for it. Both the birth parent(s) and the adoptive couple sign agreements outlining the at risk placement and acknowledge that until such time as the birth parent(s) go before the court and either consent or relinquish, the baby is legally the child of the birth parent(s).
Some birth parents and adoptive couples are not comfortable with at risk placements so a pre-adoptive "foster" home is used to care for the baby until the birth parent(s) have signed their consent or relinquishment.
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What is a consent or relinquishment? A consent or relinquishment is a paper document that a birth parent signs allowing the adoption to take place. By signing the paper you agree that you are giving up certain rights and responsibilities and you also acknowledge that you are signing the documents freely and voluntarily and that nobody is forcing you to sign.
In most counties consents or relinquishments are taken by going to the Probate or Family Court and meeting with the Judge. In most counties consents or relinquishments are taken by the Judge in his or her chambers. Whether done in chambers or in the courtroom the process is a closed one and the general public is not allowed to come in and observe.
When the Judge takes your consent or relinquishment they will ask you a series of questions. Some Judges ask many questions some ask very few. The important thing to remember is that the Judge is not there to judge you but to make sure you understand what you are signing and that you are doing so freely and voluntarily. Judges understand how difficult this decision has been and they have the utmost respect for you and your decision but they have to be comfortable that you are comfortable with your decision.
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I want my new spouse to adopt my child how
can I do this? This is commonly referred to as a
step parent adoption. You either need the consent
of the child's other parent or you have to have
terminated their parental rights before an
adoption can occur. No home study is required in
a step parent adoption and generally there is no
Interlocutory Decree and the adoption is final the
same day. You can choose to substitute your new
spouse's name on the birth certificate and to
change all or some of your child's name as well.
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What is termination of parental rights? Termination of parental rights is a formal legal process in the Probate or Family Court where either the State of NH or a private party seeks to terminate (end) a parents parental rights over their child. There are several grounds (reasons) for terminating parental rights, the most common are abandonment, failure to support and failure to correct. Failure to correct is most commonly used by the State of NH Division for Children Youth and Families (DCYF) after an abuse and neglect proceeding in the District Courts.
In all terminations the Court is required to appoint a Guardian ad litem (GAL) to represent the best interests of the child. The GAL conducts an investigation and interviews the parents and the child and others and reports back to the Court on what would be in the child's best interests. In private terminations the petitioner is responsible for the fees of the GAL unless they have filed a petition with the Court seeking to have the Court Fund pay the fees in the first instance. If the Court grants this petition the parents can be asked to reimburse the Court Fund.
If the Probate Court terminates the parental rights of the parent(s) then once any appeal period has run the child is deemed to be "free" for adoption and the adoption petition can be filed.
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What is the ICPC? ICPC is the Interstate Compact on the Placement of Children. The ICPC requires that before a child is brought into New Hampshire or allowed to leave New Hampshire for the purpose of adoption an application must be made to the commissioner of the Department of Health and Human Services. The commissioner must review the application and give permission for the child to either be sent from New Hampshire or received into New Hampshire.
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What happens to the birth certificate when we adopt? Once your adoption is final the Register of the Probate Court sends a notice to the town clerk where the baby was born to send the adopting parents a certified copy of the amended (new) birth certificate. The former birth certificate with the names of the natural parents is sealed. The amended birth certificate makes no reference to the adoption and is as identical as possible to the first birth certificate.
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We have tried to have a child for many years but can't and are now considering adoption, what do we do first? Gather your information about the process and then tell everyone you know that you want to adopt. You should also consider putting together a profile. A profile is many things and sometimes it is as simple as a from the heart letter to the birth parent(s), other profiles contain pictures, family backgrounds, educational and work histories, etc. There is no magic formula for any profile and often when speaking with birth parents about the couple they choose they say something just clicked when they read that particular profile.
Some adoptive parents go through agencies where they pay a flat fee for the adoption. Many agencies have long lists of adoptive parent(s) waiting for babies. With an agency adoption the adoptive parents often are not aware of the baby until after the birth parents have signed the relinquishments. Some agencies are however participating in open adoptions where the natural parents review profiles of adoptive parents and sometimes there is a meeting between the couples.
A private adoption is one where an agency is not used and the adoptive parent(s) and the birth parent(s) come together by a number of means. Sometimes attorneys have birth parents looking for adoptive couples and sometimes attorneys have profiles on hand of adoptive parent(s) looking to adopt. Some people meet through the Internet and others are brought together because they happened to mention the idea to a friend who knew somebody who wanted to place a child for adoption.
While there is no legal requirement that adoptive parents have legal counsel, in private adoptions, both the adoptive and birth parent(s) should have competent legal counsel to assist them in the adoption process. In some counties in the State the Court will not take a birth parent consent or relinquishment unless they have legal counsel to represent them.
DIVORCE
What is a divorce? A divorce is a absolute dissolution of your marraige obtained in a court of law. At the conclusion of a divorce you are free to marry again. In a divorce, provisions are made either by agreement or order for distribution of your property as well as for your children, who they will live with, when they will see the other parent, whether child support will be paid and how much, etc. If in the divorce, you and your spouse are able to afree on everything then your agreement will be memorialized on paper and is usually called a Permanent Stipulation. If you can agree on everything you will have what is called an uncontested final hearing and your divorce will be effective the same day. If you cannot agree then the court must decide those areas that you and your spouse cannot agree on. The court does this by applying statutory and case law standards to the issues you cannot agree on. This usually requires the court to conduct an evidentiary hearing where you and your spouse and others take the witness stand and give testimony on the issues you cannot agree on. In contested cases your divorce is generally effective thirty days after the judge or marital master issues their written decision.
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How is legal separation different from a divorce?
A legal separation follows the same process as a
divorce except at the end of the process you have
what is called a limited dissolution of your
marriage and you are not free to remarry at the
conclusion. Often people get legal separations for
religious reasons or due to financial reasons. In a
legal separation, provisions are made either by
agreement or order for distribution of your property as well as for your children, who they will live with, when they will see the other parent, whether child support will be paid and how much, etc. If in the legal separation process, you and your spouse are able to agree on everything then your agreement will be memorialized on paper and is usually called a Permanent Stipulation. If you can agree on everything you will have what is called an uncontested final hearing and your legal separation will be effective the same day. If you cannot agree then the court must decide those areas that you and your spouse cannot agree on. This usually requires the court to conduct an evidentiary hearing where you and your spouse and others take the witness stand and give testimony on the issues you cannot agree on. In contested cases your legal separation is generally effective thirty days after the judge or marital master issues their written decision.
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Isn't New Hampshire a "no fault" divorce state? In New Hampshire you can obtain a divorce either by no fault - irreconcilable differences or by fault. In an irreconcilable differences divorce you are saying to the court that you and your spouse no longer get along well enough to be married. You often do not have to give an in depth explanation of what the irreconcilable differences were. In New Hampshire there are ____ Fault grounds for seeking a divorce. A fault ground divorce is granted to the innocent spouse and you must prove to the court that the fault occurred and that it was the cause of the break down of your marriage. You cannot agree to a fault divorce in New Hampshire. In making a finding fault the court may make an unequal property settlement in favor of the innocent spouse. The downside of pursuing a divorce on the basis of fault is the cost associated with seeing the matter through until its conclusion.
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My spouse and I agree to a divorce on the grounds of irreconcilable differences how come my case is still contested? Just because you and your spouse agree that you can be granted a divorce on the grounds of irreconcilable differences does not mean that your divorce is fully uncontested. For a divorce to be uncontested you must agree on everything, the grounds, property settlements, custodial arrangements for your children, support, alimony. A divorce is contested when the parties cannot agree on any one issue or every issue.
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How is a divorce started? A divorce is started by
filing a petition in the Superior Court or Family
Division Court of the county in which either you or
your spouse reside. The perition tells the court who
you are, who your spouse is, whether you have
children, property, debts and why you want the
divorce. The petition will often ask the court to
schedule a temporary hearing to decide certain
issues on a temporary basis such as who lives in the house, who the children live with, who pays the bills etc. The filing fee for a divorce is currently $152.00. If you have children you will also be required to attend a Child Impact Seminar which discusses the impact of divorce on children and provides information on things to do and not to do and how not to involve your children in your dispute. The cost of the Child Impact Seminar is curently $75.00 and is paid directly to the seminar provider. Once you have completed the seminar the provider files a certificate of completion with the court. The court will not allow you to get divorced if you have children until you have attended the Child Impact Seminar.
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How long will it take me to get a divorce? The answer to this question is it depends. Even with a fully uncontested matter it can sometimes take up to six months before a divorce is final. If the matter is contested in any way it can take a year and sometimes longer depending upon the issues. There are many people that file for divorce each year as well as many people that need to revisit their divorces because they need to make modifications to a portion of their decree. The clerks and staff of the courts realize how import your case is to you and they try very hard to schedule every case that comes to the court in as timely as fashin as they can. There is however only so much court time available and this coupled with budgeted cuts and staff shortages has had an impact on how quickly issues get scheduled for a hearing.
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What is custody and how does the court decide who my children live with when I get a divorce? As with any issue in your divorce if you and your spouse can agree the court will generally approve your agreement. If you cannot agree on who should have decision making power over your children or who they will live with when you get a divorce, the court will have to decide these issues for you. The initial standard for custodial issues is what is in the best interest of the child.
There are two types of custody to be decided, legal and physical. Legal custody is often referred to as decision making, what school the child will attend, what religion the child will practice if any, the right to sign permission for medical treatment, etc. In New Hampshire the presumption is to grant parents joint legal custody, the idea being that just because you are divorced does not mean you should not continue to participate in your child' life.
Physical custody is the type of custody that there are more disagreements on in divorces. Physical custody is who the children will spend a majoruty of their time with. Often one parent is granted primary physical custody and the other parent is granted residual physical custody or visitation. Again if you and your spouse can agree all the better for you and your children if you cannot the court will decide. Keep in mind that a custodial schedule that works well when your children are a certain age will not work well when they reach another age. It is important to continue to work with your ex-spouse to make your children's lives post divorce as worry free as possible.
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What is a Guardian ad litem? When the parties to a divorce cannot agree on legal or physical custody or visitation or what is in the best interests of the children he court will appoint a Guardian ad litem (GAL) to represent the interests of the children. The GAL is often an attorney but not always appointed by the court and told to conduct an investigation into the issues of the case as they pertain to the children. The GAL interviews the parents, others and sometimes meets with the child and makes a written recommendation to the court based upon their investigation as to what would be in the best interests of the child. The court will give weight to the GAL's recommendations but the GAL is not the one who has final say if the parties still cannot agree once the GAL has conducted their investigation and made their recommendations. When the court appoints the GAL they also must make an order as to who shall pay the GAL. Usually the parents are responsible for the fees of the GAL.
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Does the Court always make orders for child support? Generally there is always an order for child support. Child support is calculated by applying a formula to both parents' incomes. Certain cerdits are given to whoever pays work related child care expenses and health insurance premiums for the children. While the formula is a little more complicated, a quick rule of thumb is that for one child the parent that pays child support will pay 25% of their net income as child support, for two children it is 33%, for three children it is 40% and for four or more it is 45%. Child support is to continue for each child until they turn eighteen or graduate from high school, whichever occurs last. Child support can also be reviewed every three years or upon a significant change in circumstances. Child support is also paid by way of wage assignment which means that the paying parents employer takes the child support payment out of their check each pay period and make sure it gets to the other parent. Some child support payments are made by direct deposit or electronic transfer.
In shared physical custody arrangements there often is by agreement no child support paid. Usually the parents agree to share all expenses equally for the children. In some shared physical custody arrangements child support is still paid by one parent to the other, often this is because the parents have different incomes and one parent needs the money to assure that the children are cared for in a similar fashion in both households.
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What is shared physical custody? There is no
formal definition of shared physical custody in New
Hampshire and often is it what the parties have
agreed to. Some spell out the arrangements so that
the children spend fifty percent of their time with
each parent. Some parents alternate the weeks,
some parents split the week and some use a
rotating every other weekend schedule with the
weekend starting earlier in the week and continuing into the beginning of the following week. Any shared custody arrangement must first and foremost work for the benefit of the children.
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What will my divorce cost? Again the answer depends. Keep in mind that the more you and your spouse can agree to generally the more inexpensive a divorce can be. Cost also depends upon when you reach your agreements. If you agree at the outset then a divorce could be inexpensive. If you agree only after a long drawn out battle then it will be very expensive. The less you agree and the more drawn out your divorce is the more expensive it will be for both of you. Most attorneys charge an hourly rate for their time and most require payment of a retainer (deposit) and signing of a fee agreement before beginning work on a case. Cases involving substantial assets or custody battles can cost thousands of dollars.
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Can my spouse and I use the same lawyer? No. Lawyers cannot represent both parties in a divorce and it would be unethical to do so.
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Do I really need a lawyer to get a divorce? You can file for divorce in New Hampshire without using an attorney and the forms you need are available at the courthouse. However, lawyers understand that your divorce involves complex legal and emotional issues and that your rights, responsibilities, assets and your children are at stake. A lawyer has the education and training to handle your case and to make sure it is handled properly the first time. A divorce is a stressful and emotional process and many individuals find they do not want to deal with all the paperwork and forms necessary to complete a divorce.
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Disclaimer: The information contained in this website is intended to be for informational purposes only. It is not intended as specific legal advice. Every case is different and there is no warranty that this information is accurate or current. Because every case is unique you are urged to contact an attorney to discuss the aspects of your case and to receive advice specific to your matter.
PROBATE
What is guardianship of a minor? Sometimes there exist circumstances where a child cannot be cared for by their parent(s). Sometimes there exist circumstances where a child's property cannot be properly cared for or managed by their parent(s). When these circumstances exist anyone can petition the Probate Court for guardianship over either the person or the estate or both of a minor. The child's parents is still living are entitled to notice of the matter and if they disagree it becomes the burden of the petitioner to demonstrate to the court that the best interests of the minor require substitution or supplementation of parental care and supervision. Guardianships can be indefinite but by law they terminate upon order of the court, upon the death of the minor or upon the minor's eighteenth birthday. However, anyone at any time can petition the court to dissolve the guardianship at which time they must demonstrate to the court that substitution or supplementation of parental care and supervision is no longer necessary and that termination of the guardianship will not adversely affect the minor's psychological well being.
A guardian over the person of a minor is required to file a report with the court on a yearly basis that informs the court how the minor is doing and whether there have been changes in the minors residence, health, schooling, etc.
A guardian over the estate of the minor is deemed by the court to have a fiduciary responsibility towards the minor's estate. A guardian over the estate is often required to file a bond with the court to assure that they will perform their duties faithfully and honestly. If the guardian were not to perform their duties faithfully and honestly then the bond could be called forward and paid into the court. A guardian over the estate of minor is required to file an annual accounting of the administration and management of the guardianship estate (property).
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What is guardianship over an adult? Sometimes there exists a set of circumstances where an adult is either temporarily or permanently incapable of making decisions about their property as well as their own care. When these circumstances exist anyone (often a family member) may petition the Probate Court to become guardian over an incapacitated adult. In adult guardianships the court appoints an attorney to represent the proposed ward. The attorney generally serves the proposed ward with a copy of the guardianship perition and explains the process to them and assists them if they want to object to any or all of the guardianship. If sufficient evidence is provided to the Court the court will grant a guardianship over the person or estate or both of the proposed ward. The guardian will then be in a position to make decisions based upon the wards best interests. If the individual becomes guardian over the estate of the ward they will have to file a bond with the court to insure that they will perform their duties faithfully and responsibly. The guardian is required to file an annual accounting with the court as to how the ward is doing as well as file an accounting of the administration and management of the guardianship estate (property).
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What is a will? A Will is a very common estate planning document. It is a written document which directs amongst other things, the manner in which your property will pass at the time of your death. A Will can also provide for the nomination of a guardian for any minor children as well as a trustee/custodian for any property you leave to your minor children.
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Why do I need one? If you do not have a Will then the State of New Hampshire has laws that determine the distribution of your property. The laws of intestacy may conflict with your desired wishes as to how your property is distributed upon your death. The laws of intestacy only deal with how your property will be distributed and do not address who will take care of your children and any property they may inherit.
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What is a General Durable Power of Attorney? A General Durable Power of Attorney is a document where you elect an agent to act for you in matters other than your health care. A Power of Attorney can be limited or very broad in the powers it gives to your designated agent. In its broadest terms your agent is given the authority to handle all your financial affairs including purchasing and selling of assets, filing tax returns, accessing bank accounts, etc. Your elected agents powers will continue through any period of incompetency but their powers will terminate upon your death. You have the option when you sign a General Durable Power of Attorney to authorize that the Power of Attorney be held by your attorney until it is needed.
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What is a Durable Power of Attorney for Health
Care? A Durable Power of Attorney for Health Care
is a document where you elect an agent to make all
health care decisions for you when you are not
capable of making the decisions yourself. In the
document you make a specific designation whether
your agent has the authority to make the decision
to discontinue life sustaining treatment and
whether the authorizaion extends to the ability to authorize the discontinuation of artifically provided food and liquid. You may make specific directives in your Durable Power of Attorney for Health Care as well as choose a second person to act as your agent in the event the first person you choose is unable to do so. You should discuss your decisions and choices regarding life sustaining treatment and artificial nutrition and hydration not only with your agent but with your health care provider as well.
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What is a Living Will? A Living Will is a document where you make known your choices that you do not want to be placed on artificial life support if you are certified by two physicians to be terminally ill or permanently unconscious. You may also express in your Living Will where you do or do not want nutrition (food) or hydration (liquid) to be given to you by artificial means if you are terminally ill or permanently unconscious.
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Disclaimer: The information contained in this website is intended to be for informational purposes only. It is not intended as specific legal advice. Every case is different and there is no warranty that this information is accurate or current. Because every case is unique you are urged to contact an attorney to discuss the aspects of your case and to receive advice specific to your matter.
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