An estate plan with a poorly drafted power of attorney for health care can cost you thousands of dollars in guardianship and conservatorship proceedings. The standard power of attorney for health care often burdens a loved one with deciding if you live or die and creates rifts with those who disagree. A well-conceived power of attorney for health care created by Advanced Legal Planning can solve these problems.
What Is A Power Of Attorney?
You can give an “Agent” the legal authority to act in your name to make decisions and take actions on your behalf. The document granting this authority is called a “Power of Attorney.”
There Are Different Types of Powers of Attorney
Health Care Power Of Attorney
Kansas Law Refers To A Document Granting Authority To Make Health Care Decisions As A “Durable Power Of Attorney For Health Care.” (Kansas Statutes 58-625) This Document Is Sometimes Called An “Advance Directive.”
Financial Power of Attorney
Power Of Attorney Documents That Are Not For Medical Decisions Are Usually Referred To As “Financial Power Of Attorney.” These Cover All Matters Of Life Other Than Medical Decisions.
What Is A Living Will?
A Living Will is a written directive stating your intent regarding medical intervention. A Living Will is used when you are no longer able to communicate your wishes and it is not likely that you will recover.
Living Wills may refuse particular interventions and request particular interventions or they may refuse all medical interventions (while still allowing pain management).
A Living Will directive:
- Removes Emotional Burden From The Shoulders Of Your Trusted Agent,
- States Your Intent Clearly, And
- Prevents Family Division Over These Decisions.
The Living Will Directive May Be A Separate Document. However, It Is Often Part Of The Power Of Attorney For Health Care. Because Of Unique Provisions In Advanced Legal Planning Documents, We Make Any Living Will Directive A Part Of The Power Of Attorney For Health Care.
Importance Of Powers Of Attorney For Health Care And Living Wills
- Expensive Court Proceedings – Without A Power Of Attorney For Health Care In Place, Your Family May Not Have Anyone Authorized To Make Medical Decisions On Your Behalf. To Gain That Authority Requires Expensive Proceedings Where The Court Will Appoint A Guardian And Conservator For You. This Authority Over You Does Not Immediately Disappear When You Recover. You Must Petition The Court To Remove It.
- Delay In Authority – Seeking Court Appointment Of A Guardian And Conservator Takes Time. Until The Appointment Is Made, Doctors Will Be Left To Make Decisions On Their Own, Regardless Of What Your Family May Tell Them About Your Wishes.
- Family Fights – When Two Or More Family Members Disagree About Your Medical Care And Feel Strongly About Their Positions, The Family Can Be Divided. A Power Of Attorney For Health Care Identifies Who You Trust To Make Those Decisions For You. This Person Is Appointed As Your Agent.
- Emotional Burden – The Decision To Let A Loved One Go (Pull The Plug) Is An Extremely Difficult Choice. There Is Often The Hope That, Just Given A Little More Time, You Might Recover. A Living Will Stating Your Intent Removes That Burden From Your Agent. It Is No Longer Your Agent’s Decision, It Is Yours.
Potential Problems With Health Care Directives
When the doctor has said you are not going to recover, most clients don’t want to be kept alive by invasive means. While this removes an emotional burden from your Health Care Agent and may prevent family fights, sometimes there are legitimate reasons to give the agent the authority to override the Living Will.
- Time to get a second opinion – Your Health Care Agent may have legitimate reason to believe he or she should seek a second opinion.
- Time to gather relatives – Your Health Care Agent may want time to gather people to say their goodbyes.
- Time for hope – Whether your Health Care Agent has hope or whether your Health Care Agent wants to give time for others to prevent family division, there may be need to override the Living Will provisions in your Power of Attorney for Healthcare.
Choosing to add a provision allowing the Health Care agent to override the Living Will reduces the Living Will to a suggestion and returns all of the emotional burden and family problems the Living Will is designed to overcome.
Power of Attorney for Health Care documents created by Advanced Legal Planning provide an elegant solution to this dilemma. If you wish to have a Living Will, you may give your Health Care Agent authority to override it, but only for a specified time. You should provide enough time so your Health Care Agent may fulfill any reason to override.
To determine how long to authorize a Health Care Agent to override a Living Will, you should consider:
- Family Dynamics – How will family dynamics play into this decision?
- Gathering Family – How long will it take to gather family? Where are they? How quickly can they arrange to come?
- Second Opinion – What is the likelihood of needing a second opinion and how long will that take?
- Added Expense – What added expense is there likely to be for each day you are kept alive by invasive means?
What Does “Durable” Mean?
If I have a Trust, Do I Need a Power of Attorney?
A power of attorney for health care is included with every Advanced Legal Planning trust-based estate plan. The trust controls assets, but the trustee has no authority over medical decisions.
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