Most folks are familiar with the concept of a will. A will is a document which directs where your property (and possibly your children) should go should you pass away. Most folks are also familiar with the concept of the living will. A living will is a document which gives directions as to whether or not you want life support and/or food and/or hydration should you find yourself in an irreversible coma or a persistent vegetative state. (I have absolutely no idea what the difference is between the two, but there is a medical difference, so I’m told.) Most people also have some idea of what a power of attorney is: a document which allows someone to do financial things for you, whether it is sign checks or sell your house or sue someone on your behalf.
These documents, however, have limitations, and, especially in the case of a Power of Attorney, give someone more power than you might want to give them when you are perfectly ok doing things yourself. Most people don’t want others — even trusted others — making decisions for them unless it is absolutely necessary.
There are two other, less ‘famous’ documents, which can go a long way towards making a difficut situation less difficult. These are a health care power of attorney and a durable power of attorney.
There are many situations in which you are unable to make medical decisions for yourself but a decision has to be made and soon. These situations are not necessarily end of life situations, you are not necessarily in an irreversible coma or persistent vegetative state, and the situations are not necessarily permanent ones. For example — after a bad car accident you may be in a medically induced or temporary coma and a decision needs to be made whether to amputate or try to save your leg. There are other situations in which the drugs you are necessarily taking interfere with your ability to make rational decisions. There are, sadly, many of the older generation who may be physically healthy but not mentally healthy, and cannot rationally decide if they want a full or partial mastectomy or to try the chemo or radiation first, for example.
A health care power of attorney can help these situations, and also help avoid the necessity of Court involvement through temporary guardianships in certain situations. In a health care power of attorney, you designate someone (who may or may not be the ‘next of kin’ — I have many close relatives who I love dearly, but whose values are different from mine, or who do not make rational decisions well in emotional situations, or who may not want the burden of making these kinds of life altering decisions) to make these decisions for you. Sometimes more importantly, a health care power of attorney can help the decision maker have access to your medical records, something they might not otherwise be able to do because of HIPAA. Imagine that — having to make a potentially life changing decision about a loved one without having access to the medical records that contain the information you need to make an informed decision. It has happened, and will likely happen again.
Likewise, durable financial powers of attorney can be of great help. Lots of people — myself included — have no interest whatsoever in allowing anyone else control over my money or property while I am perfectly capable doing so myself. However, the last thing I need is to find myself in a terrible car accident or battling cancer or some other horrible medical situation, and when, several months later, I am finally able to deal with things on my own, my house has been foreclosed upon, my car has been repossessed, and I am being sued because I haven’t paid credit card bills because no one has had access to my money or ability to talk to my creditors while I was out of it. A durable financial power of attorney ensures that no one but me has that authority until or unless two duly licensed doctors sign off saying I am incapable of handling my own affairs. Then, when I am able once again to make my own decisions, the power of attorney has no authority once two doctors say I am (relatively) rational again.
Early planning can avoid guardianships and conservatorships with elderly individuals. (For more discussion about what these are, see my earlier column “Mothering Your Mother”.) Often, folks with dementia will not fight the decision to go into assisted living or a nursing home. They don’t try to go out and buy a car with cash and then drive it. They don’t try to give all their money to the first person who asks. So simply having these powers of attorney, and being allowed to make their medical decisions for them and pay their bills accordingly is enough. If nothing else, these documents make it clear that, when you were capable of rational thought, who you wanted to be in charge and will save a ton of family arguments and potential court battles.
These documents can also give guidance about how you want things handled. The medical power of attorney, for example, can give direction about whether you want your decision makers to consider your quality of life, the likelihood of success of the treatment, the costs involved, or whatever else you want to make known. Often, this lifts a large guilt burden off of the shoulders of those who are making the decisions. It is one thing to sign off on something that is effectively a death warrant on your father, especially if your brother doesn’t want you to. It is quite another to sign off on something your father has stated, in no uncertain terms, and in writing, he wants you to do.
These are really uncomfortable decisions to make, and no one enjoys coming into a lawyer’s office and talking about their own deaths or possible disabilities or disasters. Thankfully, most people who have these documents find that they never have to be used. But when they are needed, they make life for your family and loved ones so much easier. If something were to happen to me, I want my family to be sad, but nothing else. Not mad at me because I couldn’t do something fairly simple to make things easier on them.
Besides, I have an umbrella theory that applies to these situations. You know how when you have an umbrella with you it never rains? Well, if you have a will, you will never die.
It is nice thinking about, anyway.
This article was written by a lawyer, but should not be considered legal advice in any way, shape, or form. It is written for general (and generally vague) informational purposes only. In order to properly evaluate your case, a lawyer must examine all the facts and circumstances that are particular and personal to your situation.