DURABLE POWERS OF ATTORNEY AND LIVING WILL
… planning tools for crisis situations
Medical science has made it possible for people to survive illnesses or injuries that used to be fatal. Health care providers are able to provide life-sustaining machines or the artificial provision of nutrition and water through tubes, and other techniques to sustain or artificially prolong “life”. Often there is quantity of life, but not much quality of life. Once such heroic measures are under consideration or have already begun, who is able to make the decision to stop them (or never start them) and allow the patient to die?
In the past, the decision often rested with the patient’s family members acting in consultation with the patient’s physicians. Because of questions of possible legal liability and because of changing relationships between doctor and patient or between family members, such informal arrangements are quite often impossible. The courts may be asked to appoint a guardian to make health care decisions. These questions arise not only with regard to life and death matters, but are involved any time a patient is unable to make or express decisions about medical care, personal matters or possible institutional placement. Legal tools are available to grant authority to your trusted loved one(s). Then they can make and enforce decisions for you if you become incapacitated (the term in Kansas law is “impaired”), so court action can be avoided.
What You Need To Know
If you are concerned about how your own personal affairs or those of loved ones will be conducted, how personal care will be arranged and how medical decisions will be made when the ability to manage them has been lost from physical or mental causes, several choices can be made NOW to assure that your own preferences are honored. Although the phrase “advance directive” is often used to refer only to a document for end-of-life decisions, there are actually several documents to which this label applies. Any document containing instructions for a situation which has not yet occurred is an advance directive, even a “DNR” (Do Not Resuscitate”) order.
First, you should consider executing a Durable Power of Attorney for Health Care Decisions, sometimes called a “Health Care Proxy”. This document, now recognized everywhere in the United States, allows you to designate an agent (traditionally called an “attorney-in-fact”, which is quite confusing ), as well as one or more alternates, to have legal authority to obtain or refuse any kind of medical or health care treatment for you. The power of attorney document can be very specific as to what the agent may approve or refuse, or it can be very general, relying on the agent’s discretion. Such a power of attorney is always revocable and amendable at any time. If properly drafted, the agent will be able to review your medical records, consult with your caregivers and sign any forms that may be needed to assure care according to your preferences. Unfortunately, many forms given out at hospitals and nursing homes are not specific enough to accomplish these goals and comply with HIPAA law which governs release of private health information. An elder law attorney can make certain your documents are up-to-date and comprehensive.
Second, you may want to sign a Living Will or Declaration for terminal illness. A living will is a statement of your preferences about medical care in the event of a terminal illness. It describes how far you want your physicians to go in providing care when death would otherwise be imminent. The living will document speaks to your desire to be free of additional surgery, dialysis, antibiotics or other measures which only contribute to increased length of life but cannot prevent your ultimate demise. Additional measures may still be permitted to enhance the quality of that remaining life, but not prolong it, such as medications for relief from pain. The living will does not name a person to make decisions, but it can give guidance and extra assurance to the agent named in the Durable Power of Attorney for Health Care Decisions who will face these very difficult decisions.
Most people will sign both a Durable Health Care Power of Attorney and a Living Will. Recent cases decided in the U. S. Supreme Court have outlined additional requirements for the living will document which may not appear in forms given out at hospitals and nursing homes. An example is that a feeding tube will be permitted unless you specify that you do not wish to have one when your body can no longer process nutrients. Ina Kay Zimmerman can assist you to make sure the custom language is included which will assure that your wishes are respected.
Just because a diagnosis of dementia has been made, it does not necessarily follow that the patient can no longer make legal decisions. In our experience, in fact, most patients with recent diagnoses of dementia will still be able to discuss their powers of attorney (and other estate planning options, like wills and trusts) — perhaps for years. The legal issue is whether the person understands the nature and effect of the documents he or she is signing. The level of capacity required to sign a power of attorney is not terribly high, unless there are complicating circumstances in an individual case, which can often arise where there is serious family conflict. Ina Kay Zimmerman has a wealth of experience in these difficult situations, and can help to smooth the way for individuals and families.
Locating Documents after they have been prepared and signed
The Zimmerman Law Office offers the “DocuBank” program as part of our estate planning services to ensure that your living will, health care power of attorney and other medical directives will be available when you need them, and where you need them. DocuBank provides worldwide emergency access to your healthcare directives, 24/7/365, worldwide. For more information, click here.