Here is another in our "Greatest Hits" series of blogs. This one was first published in June of 2010.
Being In Control
Perhaps the most important goal of any estate plan is to allow the client to maintain control. Most of our clients here at Idaho Estate Planning are very intent on “being in control” as long as possible. They want to make their own decisions about whether to go into a “facility” or stay in their house. (Usually the choice is to stay at home as long as possible.) However, the ability to be in control and stay at home is challenged constantly.
Some of the challenges to being in control consist of those disabilities we all fear: Alzheimer’s disease, dementia, other mental challenges and numerous physical disabilities. The biggest question becomes, “How do I maintain control if I suffer one of these disabilities?” While these situations are varied (and extremely difficult), there are some basics that will allow you to exercise control, that is, allow you to voice your opinion is such a situation.
Durable Power of Attorney for
First and foremost, you need to execute a Durable Power of Attorney for Health Care. This is a legal document that allows you to personally choose who will make decisions or give instructions if you are not able to, whether from mental or physical disability. This is an extremely important document to have in your estate plan. It is, therefore, extremely important to carefully consider who you want giving instructions to health care providers on your behalf. Typically, this is a spouse.
But, if the spouse is unable to fulfill this responsibility, who will take over? This requires great thought and consideration. Who has the skill set to take on this responsibility? Who understands what you want to have happen? These are not easy decisions and should not be undertaken lightly.
A Living Will is a form created by statute that allows you to express a preference if it is determined by two doctors that you are in a terminal state and being kept alive by artificial life support measures. The Living Will also applies if you are determined to be in a persistent vegetative state (some call this being “brain dead”). The Living Will allows you three basic choices: 1) to forego all life preserving efforts being applied whether artificial or natural; 2) to forego any life preserving efforts applied; or 3) only natural efforts applied including food or water or both. In reality, while these situations do occur, they are rare.
The Physician Orders for Scope of Treatment or “POST” is a more detailed legal document that allows you be very specific in how treatment, whether artificial or natural is applied to you. You can choose to forego intravenous feeding or the use of a feeding tube. You can choose to forego intubation to keep you breathing. You can choose to forego “aggressive methods” to preserve your life. Each of these is an option that you choose.
If your Living Will or POST is needed, it is your Health Care Agent as established in your Power of Attorney for Health Care who gives the instructions to the health care professionals. These documents, then, work together to help you maintain control of your own situation. One more document that makes all the others work better is the HIPAA release. This is an informational release in which you give the health care professionals permission to provide your health information to your Health Care Agent or other family members. In essence, the Power of Attorney allows your Health Care Agent to talk to the doctor. The HIPAA release allows your doctor to talk to your Health Care Agent.
These, then, are the minimum documents you need to make sure your wishes for health and medical care and end of life decisions are honored. Now is the time to address these concerns and plan for the most difficult of times. Once it starts raining (or hailing as it did yesterday), it’s a little late to start fixing the roof. Once you are incapacitated, it’s too late to do this planning.
At Idaho Estate Planning, we understand the challenges faced by elder Americans. We have the experience and expertise to help you maintain your options and protect yourself as well as your loved ones now and into the future. Remember, good planning is no accident.