Posts Tagged ‘living will’
The Other Power of Attorney: Health Care Powers of Attorney
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”).
I have posted a simple for download.
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.
“Law”-ful New Years Resolutions – Coastal Senior, January 2008
Coastal Senior is a monthly periodical published in Savannah, Georgia and circulated throughout the Georgia and South Carolina low country. Bob Mason is its legal columnist.
Happy 2008. Here’s another article on New Year’s resolutions. I’m not going to ask you to lose weight, eat less, drink less, read more, or exercise more. I am going to ask you to resolve to do three things (of a legal variety) that will do nothing at all for you . . . but make quite a difference for your family. Just three.
Resolution Number One. I WILL do a Will (unless I already have one less than 5 years old).
I am amazed by the number of people who sit before me and sheepishly admit they have no will, or have wills written when the Gipper was president.
The biggest excuse seems to be either “I just haven’t gotten ‘roun to it” or “I didn’t think I really needed one”. To the first I say, borrowing a Nike line, “Just do it” . . . I can’t do much more than that to a procrastinator other than try to scare him (not to death . . . remember, he doesn’t have a will).
Wills are important for a number of reasons. Avoiding intestacy (dying without a will) is usually a must. Most married couples want to benefit each other upon the death of the first. That won’t happen under intestacy because a share (at least half or more) will go directly to children. If there are no children or no surviving spouse, the state intestacy rules will determine who among the heirs “gets what and how much”.
Also, state statute may have ideas different than yours as to who should wind up your affairs. Further, by foregoing a will you might bypass many planning opportunities that could insure the protection of your property after your death.
There are plenty of wills available on the internet for just $100 or so. I’ve even seen some guy on TV advertising software for $69. Those options are better than nothing, I guess, but they are not worth more than what you paid for them.
I suggest you pay (yes, pay) an attorney to evaluate your situation and discuss your options. She may have some great ideas you missed surfin’ the web.
Finally, prepare a will if you love your family. I haven’t looked at my records, but I would not be surprised if I have earned more fees slugging it out between warring and hateful siblings and first and second families than I have earned writing wills. To the extent you leave a well-thought-out plan you may avoid The Family Feud.
Resolution Number Two. I will insure that I have an effective Power of Attorney.
Powers of attorney are incredibly important and often overlooked. A power of attorney involves a principal (you) appointing someone else as agent or attorney-in-fact (maybe a spouse or an adult child) to manage the principal’s affairs, especially if the principal becomes incapacitated.
Without a power of attorney, often the only solution is a guardianship or a conservatorship. Those are expensive and intrusive . . . and involve submitting yourself and your affairs to the supervision of a probate court.
Properly drafted powers of attorney are also important to enable gifting. By “gifting” I am not talking about Christmastime, I am talking about the ability to convey and re-title assets after your incapacity if that should make sense. Transferring assets often makes tremendous sense after incapacity.
Even a power of attorney that says “I give my agent power to do anything and everything I could for myself” does not authorize gifting. That is because agents under a power of attorney are called fiduciaries and are subject to state fiduciary law. Fiduciaries include trustees, executors and, yes, agents under a power of attorney. Fiduciary law says that unless the written authorization specifically and clearly directs otherwise, a fiduciary may not squander, transfer to others or transfer to herself the principal’s assets. That certainly covers gifting.
Of course gifting powers can be made subject to special restrictions. For example, “My agent must secure the written permission of at least one sibling before making any transfer”.
Resolution Number Three. I will execute advance health care directives and discuss my medical treatment preferences with my family.
I wrote here last summer that Mom and Dad have a harder time talking to the kids about end-of-life medical preferences than they did forty years earlier talking to the same kids about . . . uh . . . you-know-what.
If you value your preferences and you love your family, spell them out in writing and have The Talk. It will avoid much confusion, heart ache and recrimination later on.
Have a great New Year!