Advance Directives: Living Will, Health Care Surrogate and Durable Power of Attorney

Over the last several years, it has been hard to avoid hearing about the Terri Schiavo case.  Though many of us would prefer to avoid it, the Schiavo case has increased awareness regarding the importance of Living Wills.  It has, no doubt, increased awareness—but will it really motivate people to actually sign Living Wills?  Are you going to sign a Living Will now?

Living Will

A Living Will is an expression of your wishes regarding end-of-life decisions.  If you don’t want to be kept alive artificially, should you be terminally ill or in a vegetative state, having a very specific, professionally-executed Living Will ensures your last wishes are clear.  For a doctor to withhold or withdraw artificial life sustaining treatment, the law says there has to be clear and convincing evidence that those are the patient’s wishes.  The best way to accomplish this, of course, is to put your wishes in writing by signing a Living WillAs we know, Terri Schiavo didn’t do this.  Her husband had stated that before Terri became ill they had discussed these issues, and that at that time Terri had made it clear she wouldn’t have wanted to be kept alive in her condition.  But, her parents disagreed.  So, Terri was kept alive for 15 years.

I work with the elderly and their families every day.  Because these end-of-life issues are not necessarily on the forefront of peoples’ minds, they do need to be addressed. Our firm takes  the initiative to educate seniors and their families. Frankly, people of ALL AGES can benefit from having this suite of legal documents professional executed. It will empower you with the knowledge that you need to make informed decisions.  It is important for everyone to realize that a Living Will is intended to be tailored to suit specific wishes. IT IS NOT AND SHOULD NOT BE A STANDARD “FORM” purchased at a local stationers.

Some people may not want their lives prolonged in any way should they be terminally ill and unconscious, while others may want all means possible used to keep them alive.  Still others may wish to decline all life prolonging treatment with the exception of food and water.  Often religious customs and preferences effect how we draft these documents.  Choice of who the Trustee is should be discussed with the attorney.

Regardless of your decision, it is critical that you discuss your wishes with your family members and loved ones.  While a Living Will is clear and convincing evidence of a person’s wishes, it is possible that from a practical standpoint in a true end-of-life situation, the document’s strength might be diminished if parents, children, or spouses claim the Living Will does not reflect their loved one’s wishes.  This could also happen if close family members simply don’t agree with each other on whether or not the Living Will reflects their loved one’s wishes.  You can imagine the concerns a doctor is going to have when a patient’s Living Will says she doesn’t want to be kept alive artificially, but the patient’s daughter is there pleading with the doctor to keep her mother alive—claiming that she “knows” her mother would have wanted to live.  You must discuss your wishes with your loved ones.  And again, you must name your most trusted person to make these decisions on your behalf.

Health Care Surrogate

In our office we include the Living Will in our Health Care Surrogate (also called a Health Care Power of Attorney) This is a document that designates another person to make any health care decisions for you if you are unable to make them yourself.  A doctor must determine your incapacity before the surrogate can act.

Sometimes these provisions are included in a Durable Power of Attorney but should really be a separate document dedicated to health care so that it can be more comprehensive.

Durable Power of Attorney

A Durable Power of Attorney is one of the most important documents an individual, especially a senior can have. It enables another person to act on another’s behalf if incapacitated. Without valid powers of attorney for finances and health, a court guardianship might be required.  This is normally something we strenuously try to avoid.

What is a Power of Attorney?  A Power of Attorney gives another individual (attorney in fact, or ‘AIF’) power in making any and all kinds of financial decisions including accessing bank accounts, selling real estate and conducting business.

What is a Durable Power of Attorney?  This is a Power of Attorney that continues beyond the incapacity of the maker.  Therefore it is one of the most important documents an elder person can have.

What can I do as the Attorney-in-Fact?  The attorney-in-fact can do only those acts specified in the Power of Attorney. However, normally these acts are very broad and encompass a wide range of powers.

Is there a certain code of conduct for Attorneys-in-Fact?  YES.  They must meet a certain standard of care when performing their duties. An AIF is a ‘fiduciary’ under the law.  A fiduciary is a person of trust. If the AIF violates this trust, the law can punish the AIF civilly or criminally. A misuse of the power can be reported to Adult Protective Services.

Who should I choose as my AIF?  Because a Power of Attorney is such a potentially powerful document, AIFs should be chosen for their trustworthiness and reliability.  In the wrong hands, a Power of Attorney is a license to steal. It can be a big responsibility to serve as an AIF. Choose wisely with the counsel of your Elder Law Attorney.

A FEW FINAL THOUGHTS…  A Durable Power of Attorney is not a “form”.  Our office has been “handcuffed” by DPAs that were not written properly or did not include some of the more unusual powers we need in our documents to properly serve our clients.  Make sure you see an Elder Law Attorney regarding preparation of this important document.

THE KEY IS TO ACT NOW!  You may want to begin by contacting our office to discuss questions you have about a Living Will, Health Care Surrogate and Durable Power of Attorney.  Once you’ve been educated about your options, you can make the decision that’s right for you.  And once your decision is made and you have acted on it, you can take the next step of discussing your wishes with your family.  Our office takes a holistic approach to serving our clients and can help you with this part of the process as well.

Some families don’t have the opportunity to plan in advance. We can help. If your family member is in or about to move into an Assisted Living Community or skilled Nursing Home, we have ways to honestly and legally protect assets without spending down all your hard earned money.

We provide FREE, valuable materials, education, support and services related to the issues surrounding the aging and disabled.


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