What can you do to best plan for your incapacity?
If you have no plan, doctors and hospitals are trained and financally motivated to prolong life as long as possible under generally accepted health care standards. While your quality of life is a consideration, it is not the deciding factor in deciding to treat you, no matter the cost. Whom do you want to make such decisions on your behalf if you are unable at that time to do so? Your doctor? The hospital? Do they want to make such decisions on your behalf? Probably not. They will want to look to your family. They will want to share the private details of your medical care with the people who care about you. Can they?
The Health Insurance Portability and Accountability Act of 1996 (commonly referred to as HIPAA) places restrictions on doctors and hospitals and to whom they can disclose your personal information. Rest assured that most doctors will feel comfortable discussing your medical situation with your family which is allowed under the act. But I am sure that most doctors and certainly most hospitals would feel better having an advanced written directive from you personally giving them permission to speak to the people that you choose.
A Power of Attorney for Health Care is provided for by California Probate Code Sec. 4680 et seq. and it is included in the suggested form for an Advanced Health Care Directive which is set forth at Probate Code Sec. 4701. The requirements are fairly simple. It must be signed and dated before a notary or before two witnesses, one of whom must also attest that they are not related to you in any way and not your beneficiary. You must name an agent and it is advisable to name at least one alternate. The statutory form sets forth a section that invites you to give a specific instruction to prolong life or to not prolong life if you have an incurable and irreversible condition, or go into a persistant coma, or the likely risks and burdens of treatment would out weight the expected benefits. There is a section that you wish above all to be given relief from pain. There is a section regarding organ donation and a section to name your primary physician for information purposes. These are optional.
If you become incompetent, do you have a plan to deal with your financial matters? The Advanced Health Care Directive nominates your agent to become your conservator should that be necessary. However, a conservatorship is costly and requires an action in court. There are other alternatives that you can arrange with some advanced planning.
First you may establish a Living Trust, which holds your assets. This is a very good estate planning tool that will allow the avoidance of a Probate Action and allow the management of your financial affairs during your lifetime, as well. If you become incapacitated, the person whom you have named as successor trustee can simply step into your shoes (so to speak) and handle your trust assets on your behalf for your benefit.
In addition, you may need a power of attorney for financial matters. If you have an IRA, that is the type of asset that should not be in a Trust for income tax purposes. However, if you reach an age where distributions are mandatory and you do not have an automatic distribution arranged, you must have the capacity to direct your bank to take action. However, if you have executed a power of attorney allowing your agent to act on your behalf, the bank or financial institution must honor the power of attorney. The caution is that a power of attorney for financial matters begins when you sign it.
Similarly, you may for convenience sake, open a joint bank account with a trusted person, whom you wish to be able to write checks on your behalf. But that person added to your account, has the immediate power to make bank transactions. Further, since their name is on the account, their creditors may attempt to reach you account. There are defenses to block such liens, but it might require court action.
In summary, with some simple planning, you can be prepared for your incapacity. An Advanced Health Care Directive is a simple and effective tool to communicate your wishes regarding your health care. Further a Living Trust or other simple tools used wisely can also prepare your estate so to avoid the necessity of a conservatorship if you should become mentally incapacitated.
Live long and be prepared.
Monday, July 9, 2012
Monday, April 19, 2010
Donation of Brain Tissue in Alzheimer's Study
In any basic estate planning, an attorney is going to suggest that you prepare and execute an Advanced Health Care Directive. Included in that directive is a Power of Attorney for Health Care designing someone that you trust to make medical decisions for you, when you are unable to. Also, part of the standard Advanced Health Care Directive is an optional section regarding your wishes about donating your organs and tissue.
So what happens if you are somewhat leary about donating organs and you check the box that says, I don't want any of my organs or tissues to be donated; and then several years down the road you are diagnosed and suffer from debilitating disease that is hereditary? Assume that by the time of the diagnosis, you no longer have the capacity to change your mind about the donation of your organs and tissue. Your participation in medical studies regarding the disease may help your family.
If your agent violates your wishes, and under your power of attorney for health care signs you up for such a medical study, the medical facility is required to follow the direction of the person holding the power of attorney--your named agent, unless otherwise ordered by the court. Any interested person can bring a petition with the court to determine whether the acts by an agent are consistent with the patient's desires as expressed in the advance health care directive and this action could be reversed by court order which would remove the agent.
If a previous agent has exercised his or her power to go against the express direction of the advanced health care directive (but there was no countermanding court order), the successor agent has no liability for the action of the previous agent.
The question that our firm faced was whether the successor agent had an affirmative duty to withdraw the patient from the medical study that would require the donation of brain tissue.
None of the family members objected to the patient's participation in the study. In fact, the patient's children believed that since the issue was to study the heritary aspects of the disease, the patient would have wanted to participate. However, since the family members were disputing other estate issues, the successor agent did not want to expose himself to any risk of litigation and asked our firm for a legal opinion on the issue.
Since no interested party objected to the patient's participation in the study, the successor agent was advised that he had no affirmative duty to withdraw the patient from the study, but that he would be exceeding his authority under the power of attorney if he was asked to sign anything authorizing the donation of brain tissue. Since the previous agent (exceeding his authority) had signed all of the documentation regarding authorizing the donation, it was not expected that any further authorization would be required.
Powers of attorneys are very useful tools, but should be fully explained so that clients can make fully informed decisions.
Kathryn Van Houten is a partner with Irsfeld, Irsfeld & Younger, LLP Attorneys in Glendale, California with a general law practice including estate planning, trusts and probate law.
So what happens if you are somewhat leary about donating organs and you check the box that says, I don't want any of my organs or tissues to be donated; and then several years down the road you are diagnosed and suffer from debilitating disease that is hereditary? Assume that by the time of the diagnosis, you no longer have the capacity to change your mind about the donation of your organs and tissue. Your participation in medical studies regarding the disease may help your family.
If your agent violates your wishes, and under your power of attorney for health care signs you up for such a medical study, the medical facility is required to follow the direction of the person holding the power of attorney--your named agent, unless otherwise ordered by the court. Any interested person can bring a petition with the court to determine whether the acts by an agent are consistent with the patient's desires as expressed in the advance health care directive and this action could be reversed by court order which would remove the agent.
If a previous agent has exercised his or her power to go against the express direction of the advanced health care directive (but there was no countermanding court order), the successor agent has no liability for the action of the previous agent.
The question that our firm faced was whether the successor agent had an affirmative duty to withdraw the patient from the medical study that would require the donation of brain tissue.
None of the family members objected to the patient's participation in the study. In fact, the patient's children believed that since the issue was to study the heritary aspects of the disease, the patient would have wanted to participate. However, since the family members were disputing other estate issues, the successor agent did not want to expose himself to any risk of litigation and asked our firm for a legal opinion on the issue.
Since no interested party objected to the patient's participation in the study, the successor agent was advised that he had no affirmative duty to withdraw the patient from the study, but that he would be exceeding his authority under the power of attorney if he was asked to sign anything authorizing the donation of brain tissue. Since the previous agent (exceeding his authority) had signed all of the documentation regarding authorizing the donation, it was not expected that any further authorization would be required.
Powers of attorneys are very useful tools, but should be fully explained so that clients can make fully informed decisions.
Kathryn Van Houten is a partner with Irsfeld, Irsfeld & Younger, LLP Attorneys in Glendale, California with a general law practice including estate planning, trusts and probate law.
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