Who Will Make Health Care Choices for You When You Can’t?

You can complete an advance directive  document often referred to as a durable power of attorney for health care and name a health care agent to make health choices for you if and when you can’t.   This person will make sure your previously written wishes relating to your health care are carried out.    This agent may also request other treatments for you consistent with your broad directives regarding your health care.

Some states call this document a “health care proxy”.   Some states call your health care agent a “health care surrogate” or an agent.   Some states combine the health care power of attorney form with the living will form in a single document referred to as an advanced health care directive.

Most people also complete a Living will documenting  their end of life wishes.  Their health care agent is obligated to follow those instructions and works with medical staff to follow out the instructions contained in a living will.

Fact: Advanced Health Care Directive.
These states have adopted the use of an advanced health care directive, a single form documenting your end of life choices and your designation of a health care agent: Alabama, Arizona, California, Connecticut, Delaware, District of Columbia, Hawaii, Kentucky, Minnesota, Mississippi, Nevada, New Jersey, New Mexico, Oklahoma, Oregon, Pennsylvania and Virginia.

Here are some questions and answers about a Health Care Power of Attorney.

• Who should you appoint a your health care agent?
• What types of decisions can your health care agent make?
• If you have a power of attorney for your spouse’s financial affairs, does this cover health care decisions as well?
• How long is a health care power of attorney effective?
• How do you revoke a health care power of attorney?
• What if you have not completed a health care power of attorney?
• Should you make both a living will and a health care power of attorney?
• How can you make a health care power of attorney form?

Q. Who should you appoint as your health care agent?

A. Your health care agent  can be be your spouse, an adult child, another relative or a friend.  We have found that your agent should, ideally, be a fighter: a person willing to make sure your wishes are carried out.

Some states do not permit the appointment of a patients physician or other health care provider as a designated agent.

While you can only have one health care agent at a time, you may name a contingent agent in the event that the first person is unable or unwilling to serve.

Don’t appoint someone without first asking if they are willing to serve as your health care agent and be sure you trust them to carry out your health care wishes.

You may your health care agent and your attorney-in-fact to be the same person.   Your health care agent has the authority to make health care choices on your behalf; however, your financial agent has the authority to pay for those choices.

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Q. What types of health care choices can a health care agent make on your behalf?

A. The person you identify as your “agent” when you complete your health care power of attorney will be empowered to give informed consent on your behalf and may make decisions about whether you should undergo medical procedures or elect hospice care.

Your agent will talk with doctors and other health care providers to make sure you get the type of care you documented or discussed with your agent.   When arranging care, a health care agent is legally obligated to follow the treatment expressed by the author of the document.

The more specific you make your instructions regarding your health care choices, the better.  These instructions should address whether your agent has the authority to withhold artificial resuscitation, hydration and nutrition, depending on your circumstance.

In many states, the health care power of attorney is a “statutory form,” meaning the authority granted to your health care agent are specifically described in state law.      In West Virginia and Wisconsin, state statutes give the designated agent the authority to arrange for nursing home placement or home health care.

In some states, you can use the health care power of attorney form to name a funeral agent.

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Q. I have power of attorney over my spouse’s financial affairs.   Does this cover health care decisions as well?

A. In most states, no.   Alaska and Pennsylvania are exceptions, the durable power of attorney statute extends to health care decisions making.

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Q. How long is a health care power of attorney effective?

A. A health care power of attorney, like a living will, becomes effective and is used when the author is incapable of making and communicating decisions.   If you are capable of making and communicating your own decisions, there is not need for your health care agent to be involved.

With one exception, the authority of the health care agent ends at your death when a personal representative, executor or a trustee takes over.  The exception is that a person acting under a health care power of attorney could have been given authority to handle the final arrangements regarding your remains and funeral.

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Q. How can you revoke a durable power of attorney?

A. You can create a revocation form terminating the appointment of your health care agent at any time while you are living.

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Q. What if you have not completed a health care power of attorney?

A. If you are married or have a registered domestic partner, generally your spouse or registered domestic partner has the inherent legal right to make health care choices for you if you are unable to do so, even if you have not completed a health care power of attorney form.

If you have no spouse or registered domestic partner and become unable to manage your own personal health care decisions, someone will request the probate court appoint a conservator who will be in charge of making health care decisions for you.

Your medical choices can be delayed unless you have legally identified a health care agent to make choices for you.

Fact: A single adult child also needs a health care power of attorney.
Parents of injured Virginia Tech students rushed to be at the side of their children.  If a child was over 18 and had not signed a health care power of attorney, they found they did not have the legal authority to make their health care choices.

If your adult child is attending college or is not married, your adult child should complete a health care power of attorney designating a parent or another adult as their health care agent.

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Q. Should you make both a living will and a durable power of attorney directive?

A.  Yes.   They serve different purposes.  A living will documents your end of life choices.   A health care power of attorney names an agent to carry out your wishes when you can’t speak or make choices on your own.

A health care power of attorney is obligated by law to carry out wishes documented in your living will.

Because both documents are critical advance directives, some states have combined the forms into a single advance health care directive document.

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Q. How can you make a Durable Health Care Power of Attorney form?

A. You have several choices.

• An attorney can create the form for you.
• If you live in Arizona or California, a legal document assistant can provide power of attorney forms.
• You can do it yourself using forms and software available on the web or on your personal computer.

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Planning makes many things possible....

WHY IS PLANNING FOR OLD AGE IMPORTANT?

Consider the following facts contained in a government study called “The Dilemma of An Aging Society.”

In 1900, the usual place of death was at home; in 2000, it was in the hospital.

In 1900, most people died in accidents or as a result of acute infections and they rarely endured long periods of disability.  In 2000, people spent, on average, two years severely disabled on the way to death.  Acute causes of death (such as pneumonia, influenza and septicemia) are in decline, whereas deaths from age-related, chronic, degenerative diseases (such as Alzheimer’s, Parkinson’s and emphysema) are on the rise.

A 2006 Rand study funded by the government tried to envision the future needs of elderly people who are terminally ill and classified them into four groups:

• The first group will die after a short period of sharp decline.  This is the typical course of death from cancer. Roughly 20 percent of all deaths are of this type.  This type of death peaks around the age of 65.
• The second group will die following several years of increasing physical limitations, punctuated by intermittent acute life-threatening episodes.  This is the typical course of death from chronic cardiac or respiratory failure. Roughly 20 percent of all deaths are of this type.  This type of death peaks around the age of 75.
• The third – and largest – group will only die after prolonged dwindling, usually lasting many years.  This is the typical course of death from dementia (including Alzheimer’s disease) and disabling stroke.  The trajectory towards death is gradual but unrelenting, with steady decline, enfeeblement and growing dependency, often lasting a decade or longer.  Roughly 40 percent of all deaths are projected to be of this type.  If you live past the age of 75, it is common for someone to die from dementia or a disabling stroke.
• The other 20 percent will die as a result of some sudden and acute event, like an accident.

These statistics are astonishing.  Eighty percent of us need to make planning for incapacity from both a legal and a financial perspective just as important as planning for death.

Elder Law

Planning for old age is about “Elder Law.”  Elder law is a term describing a set of legal and financial rules and practices we will encounter as we grow old, or as our parents grow old.  In fact, many of the topics considered to be “elder law” relate to anyone who becomes unable to manage their financial affairs or make their own health care choices, no matter whether they are young or old.

Advance Directives

Planning for old age involves the creation of various legal documents referred to as advance directives.   If your mental capacity becomes compromised as you age, or if you suffer an unexpected accident or illness, your spouse or your children may need to help manage your finances or your health care.  Sounds simple.  It’s not.

The fact is incapacity, like dying, is an event in your life where laws decide who has the authority to manage your affairs for you when you can’t.  These are the laws your family, physicians and friends will be required to follow if you become unable to make decisions on your own behalf.   Your family will find they need multiple documents signed by you to act on your behalf, each one serving a different purposes.

Long Term Care

Planning for old age also requires an understanding of what long term care will cost and how your and your family will pay for long term care if it becomes necessary.   According to the Congressional Budget office, the U.S. will spend $393 billion in 2008 for long term care, not including unpaid services provided by famiy and friends.

Many older people and their children are surprised to find they have no personal insurance to cover the cost of long term care.

If the only insurance you have is Medicare and Medigap, the cost of long term care must be paid from your personal assets unless you have Long Term Care Insurance.

These resources are useful when planning for old age:

• Durable Financial Power of Attorney
• Other Financial Directives
• Living Wills
• Health Care Power of Attorney
• Other Health Care Directives
• Long Term Care Insurance
• Medicaid
• Conservatorship

FACT : Incapacity can happen to any one
Although planning for death is important, planning for mental or physical incapacity is just as important.  A recent government study stated “eighty percent of people over the age of 65 will spend one to ten years under the care of a caregiver”.  In less than two decades it is expected that some 30 million people will suffer from some form of dementia.  If this happens to you, someone must manage your health care and your money.

Planning is not just for the elderly.  Terri Schiavo was 26 years old when she had a heart attack and slipped into a “permanent vegetative” condition.  She then lived for fourteen years until she was allowed to die following enormous expenses to her family while incapacitated.