Archive for the ‘Advance Directives’ Category
Do not confuse health care powers of attorney with general powers of attorney, financial powers of attorney or durable powers of attorney (by the way, general, financial, and durable are all words to describe essentially the same type of document). As I explain to clients, general, durable or financial powers of attorney are used to appoint someone to take care of your business matters.
A health care power of attorney is used to appoint someone to make decisions regarding your medical treatment if you are unable to do so. A health care power of attorney is not the same as a living will. A living will is a document that can be used to direct health care providers as to the type of treatment someone wants (or does not want) when and if he is unable to make that decision himself.
Health Care Powers of Attorney vs. Living Wills
Usually, if someone has both a health care power of attorney and a living will, the preferences indicated in the living will trump later contrary decisions the health care agent may attempt to make. For that reason, many people lucky enough to have a couple of stable, mature decision makers who understand their health care preferences are content to forego the living will and give the people appointed (a primary and a backup) the flexibility to respond to future circumstances rather than being somewhat “straight-jacketed” by a living will that would over ride some of their decisions.
Of course, some people do not have close family or friends who can be entrusted with that sort of decision-making authority. Perhaps others do not want to saddle an aging spouse or a child with life-or-death decision-making responsibility. And, of course, some people have very firm religious convictions they want to ensure are firmly enshrined in a living will (for example, Jehovah’s Witnesses often wish to ensure that prohibitions against use of blood or blood products are clearly set out in as living will).
The term “advance directive” is a generic term that is applied to both health care powers of attorney and living wills. Both documents are a type of advance directive. To complicate matters, some states have statutory form advance directives that combine the two types of forms into a single document. Georgia is an example of this approach. Other states have form advance directives that are separate. North Carolina is an example.
Simple Forms OK
All states (that I know of) provide that the statutory form is a nonexclusive form that is guaranteed to comply with all the formalities required regarding witnesses and notarization and the like. In other words, people are free to use their own forms as long as those forms hit the minimum state requirements for a valid advance directive. Because the statutory forms are often very confusing and long, many people prefer to have a very simple health care power of attorney (In effect: “I appoint Jane Doe, John Doe if Jane is unavailable, to make all health care decisions for me if I am unable to”).
A Walk Through The North Carolina Statutory Form
Amidst much fanfare (and immediately upon the heels of the infamous Terri Schiavo case, North Carolina revised its statutory advance directive forms. The forms have been highly criticized as being too complex. Many attorneys have drafted alternate (and simpler) versions. A couple of sections of the North Carolina Bar Association have begun the work of revisiting these forms to prepare alternatives to the general assembly.
The key provisions of the NCHCPOA form are:
- Section 1: Appoint an agent and a successor.
- Section 2: Usually ignored and left blank, this provision can be used to designate which physician makes a determination to “activate” the NCPOA; left blank and any attending physician may do so.
- Section 3: Of course you may revoke your NCHCPOA!
- Section 4: This is a broad (very broad) grant of authority to your health care agent to make health care decisions on your behalf. The first clause is key: “Subject to any restrictions set forth in Section 5 below . . . .” In other words, if you leave Section 5 blank, the authority granted in Section 4 is not limited. If you fill in some or all of the blanks in Section 5, then the Section 4 powers are limited.
- Section 5: Subsection A allows limitations on the agent’s ability to order withdrawing artificial nutrition and/or hydration. Subsection B allows other more general limitations on agent authority (this is where, for example, the Jehovah’s Witnesses often specify their specific beliefs regarding use of blood products. Subsection C and Subsection D limit mental health decision making ability. Subsection E places limits on the agent’s ability to order autopsies.
- Section 6: This is a specific grant to your agent to order organ donations “to the extent I have not already made valid and enforceable arrangements that have not been revoked.”
- Section 7: This provision instructs the Clerk of Court to appoint your health care agent as your guardian of the person if that ever becomes necessary. If you do not agree with that, you should alter that provision.
- Section 8 and Section 9: Miscellaneous provisions.
Complicated enough? That’s why I hope it will be revised.
As mentioned, above, North Carolina does an Advance Directive For A Natural Death (“Living Will”). I believe it is a terrible form, extremely confusing, and totally unnecessary if you have health care agents upon whom you can rely (just my opinion). In any event, in the interests of complete disclosure, I have posted that form as well.
A Final Thought
Are advance directives for older people only? Allow me to answer with a pop quiz:
Q: What did Karen Ann Quinlan, Nancy Cruzan, and Terri Schiavo have in common?
A: Two things. They became famous (infamous) court cases. All three names belonged to young, healthy women without advance directives.
As an elder law and special needs attorney I get a track-side seat for a pile of planning train wrecks: Here are the best ones . . .
Great Idea One: Do not have a will. Let state law determine how assets will be divided (they won’t all go to a spouse if there are any children). Without a will many valuable planning opportunities are missed, thus insuring maximum havoc.
Great Idea Two: Do not have an effective power of attorney. Without a power of attorney, a guardianship may be the only option, which will be expensive and subject the guardian to court supervision and bonding.
Great Idea Three: Sign over all property to the kids if bad results are the goal. Mom may believe she is protecting her property, but she is subjecting the property to the liabilities and risks of the kids (divorce, anyone?), not to mention that some of the kids may be thinking of moving to Rio. Giving the property to the kids can also insure they pay maximum capital gains taxes when they sell the property. Certain types of trusts are a much better alternative, but not as much fun if creating maximum damage is the goal!
Great Idea Four: Skip the health care advance directives. Let everyone argue among themselves to decide who gets to make health care decisions.
Great Idea Five: Do not do any long term care planning. Buying long term care insurance is way too responsible. Also, it is better to wait until there is a crisis (Dad has gone into the nursing home) because at that time there are fewer options and any course of action will likely be more expensive.
Great Idea Six: If there is a disabled child, duck parental responsibilities and avoid taking advantage of the many planning opportunities available for a special needs child. Disinherit the child and leave everything to the siblings. Maybe “they’ll do the right thing.”
Great Idea Seven: Carry inadequate insurance. This is a real winner! Do not carry a good Medicare supplemental policy so that there will be maximum exposure to whatever Medicare does not cover (which is plenty).
Great Idea Eight: Do not do any planning after a “late” second marriage, especially if there are children from the previous marriages. In this manner a perfect storm of battling families can be hoped for. Also, treasured family assets can be used to pay for the nursing home expenses of old Whatsisname instead of going to the kids.
Great Idea Nine: Do not, under any circumstances, update an old estate plan. Laws may change, but the dedicated Train Wrecker knows that he need never change!
Great Idea Ten: Never, ever seek good professional advice. With good professional assistance things may go too smoothly. If you absolutely must have some help, limit expenses to less than $100 and buy something online. Or better yet, seek the advice of a neighbor.
Bonus: Do not do anything.