On the morning of July 3rd, I got the call. My Dad was on his way to the hospital with what would turn out to be his second stroke. Thankfully and miraculously, Dad survived without any long-term effects. As I was driving to the hospital, a multitude of thoughts were bouncing around in my head; “Will dad survive? Will he be paralyzed? Will we have to move him to a care facility?” and so on and so forth. Fortunately, the one thing I didn’t need to worry about was the kind of decisions regarding Dad’s care my Mother and I would need to make.
Thirteen years ago, after many years of prodding, my parents finally executed their estate plan. As part of that plan, each of them completed Health Care Powers of Attorney and Advance Medical Directives. In my Dad’s case, having these documents in place has been a tremendous relief. You see, my Dad has Alzheimer’s, and he has been unable to make a competent decision for at least the last three years. Knowing Dad’s wishes regarding his care, and knowing they were made at a time when he was healthy and of sound mind, gives me the strength to make even the most difficult decisions for him. Fortunately, we haven’t had to make the really hard health care decisions yet, but I know that day will come.
I have been working in the estate planning and financial services field for the last eighteen years. Over those years, I have learned most people don’t want to talk about or plan for their eventual death. I get it. My hope is that by sharing my Dad’s story, you will push yourself to get certain estate planning documents completed. In future blog’s I will discuss Wills and Trusts but today, I want to focus on Health Care Powers of Attorney and Advance Medical Directives. If you have only one takeaway from this blog, I hope you will remember this: Having an Advance Medical Directive and Health Care Power of Attorney is vital for anyone over the age of 18.
You may be thinking, “What exactly are these documents and why do I need them? Aren’t those for people who are my parent’s age?”
An Advance Medical Directive, often referred to as a Living Will, allows a person to express their specific wishes regarding medical treatment in situations in which they are unable to communicate for themselves. It is a valuable guide for your Health Care Power of Attorney (discussed below) when making decisions about the types of care you will or will not receive. Advance Medical Directives often address situations such as Cardiopulmonary Resuscitation, feeding and hydration, pain medication, and other end of life decisions. They also can include things like organ donation, spiritual wishes, or a person’s desire to die at home.
A Health Care Power of Attorney (HCPOA) is a person you choose to make health care decisions for you when you are unable to make them for yourself. This should be someone you trust, are confident will exercise good judgment, and follow the wishes you have expressed in your Advance Medical Directive. This person should be chosen very carefully and only after a discussion with them about your wishes. You should never name someone without a discussion with them beforehand and their agreement to serve and carryout your express wishes. You also should name an alternate HCPOA in the event your named HCPOA is unavailable or unable to carry through with your wishes when the time comes. I do not recommend naming Co-HCPOAs as this can lead to disagreements when it really matters. In addition, although not widely used, it is also acceptable to identify family members whom you would never want to make health care decisions on your behalf.
As you can see, the Advance Medical Directive and Health Care Power of Attorney are two documents everyone should have regardless of age. When a child reaches the age of majority, parents should initiate a conversation. I have yet to meet an 18-year-old who doesn’t think he or she is invincible and knows all there is to know about the world. (I’m sure my parents would have agreed that I too, fell into this category). Landmark cases in the 1990’s dealing with individuals in their 20’s and 30’s, who because of accident or illness were left severely impaired or unconscious, are why these documents exist. Due to medical technology, younger individuals potentially run the risk of being kept alive against their wishes for decades.
Now that we have covered why these documents are needed, let’s discuss how to get them. If you have been to a doctor’s appointment or had a trip to the hospital, you probably have been asked if you have a living will or advance directive. If you respond in the negative, chances are the doctor’s office or hospital has a form they can provide to you. In an absolute pinch, i.e. you are on a gurney headed for surgery, these are better than nothing. Getting these documents from the internet is only slightly better than nothing.
Although I am an attorney, my goal is not to make you spend money going to an attorney’s office to get these documents. However, I can tell you from my many years of experience, if you love your family or those people closest to you, do not get your estate planning documents from the internet. The money spent visiting with an attorney to draft the necessary documents is well spent and will save hundreds, if not thousands of dollars when you are ill or deceased, to sort out issues that you would not have foreseen, yet could have been avoided, by having a discussion with an attorney versed in estate planning. In addition, state law governs these documents and there is not uniformity among the states regarding when medical care can be withdrawn or withheld. Visiting with an attorney who can guide you and present you with some thought-provoking questions, will help avoid a medical outcome that is contrary to your wishes.
Although I advise against using the internet for your documents, it does not mean there aren’t some wonderful resources out there. In fact, I highly recommend visiting the American Bar Association’s Consumer Tool Kit for Health Care Advance Planning as a place to start. It offers thought-provoking questions and scenarios to help you determine what your thoughts or feelings are in certain medical situations and can help guide you in selecting a HCPOA. It also provides information on other valuable resources dealing with this topic.
If you’ve made it this far, I hope you will take my message to heart. The topic of death and dying is not an easy one but one we will all face, sooner or later. I promise you that once you have crossed these important documents off your checklist, you will feel better and your loved ones will thank you. Just as I am thankful my parents marked this off their list 13 years ago.
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