Should You Get Medical Power of Attorney?
The pandemic has created awareness that being suddenly incapacitated by an illness or injury is no longer a hypothetical. The last year has reminded us that health is a fragile gift, regardless of age or any medical conditions, explains the article “Now Is the Time to Protect Your Health Care Decision Making Rights” from Kiplinger. Along with this awareness, comes an understanding that having control over our medical decisions is not assured, unless we have a well-considered health care decision-making plan created by an estate planning attorney, while we are well and healthy.
Without such a plan, in the event of incapacity, you will not have the opportunity to convey your wishes or to ensure they will be carried out. This also leaves the family in a terrible situation, where siblings may end up in court fighting against each other to determine what kind of end-of-life care you will receive.
The best way to exercise your medical decision rights will vary to some degree based on your plan and underlying Louisiana law. Nevertheless, there are three basic solutions to protect you. An estate planning attorney will be needed to prepare these properly, to reflect your wishes and align with Louisiana law. Do-it-yourself documents may lead to more problems than they solve.
Living Will. This document is used when you are in an end-stage medical condition or permanently unconscious. It provides a directive to your health care provider concerning what type of treatments you do or do not want to receive, or the treatment you always want to receive in case of incapacity. The potential problem with this instrument is that it can “tie the hands” of the person you appoint as your Medical Power of Attorney. In other words, if your Medical Power of Attorney wants to wait a few days or weeks to determine if you recover, the Living Will may conflict with that decision. Also, from a practical perspective (and within reason), most health care providers will defer to the person who is listed as your Medical Power of Attorney, regardless of what your Living Will might say. That is why I consider the Medical Power of Attorney to be the most important document when it relates to end-of-life care, much more so than a Living Will.
Medical Power of Attorney. The Medical Power of Attorney (or Health-Care Power of Attorney) is broader than a living will. It covers health care decisions in all situations, when you are not able to communicate your wishes. You may appoint one or more agents to make health care decisions, which they will base on their personal knowledge of what your decisions would be if you were able to speak. Just realize that if two people are named and they do not agree on the interpretation of your decision, you may have created a problem for yourself and your family. Discuss this with your estate planning attorney.
Health Care Representative Laws. There are laws in place for what occurs if you have not signed a Health Care Durable Power of Attorney or a Living Will before becoming incompetent. They are intended to fill in the gap, by authorizing certain family members to act on your behalf and make health care decisions for you. They are a solution of last resort, and not the equal of your having had the living will and/or health care durable power of attorney created for you. If you default to Louisiana law, your family and caregivers may be faced with difficulties that you (and they!) did not envision.
If the statute names multiple people, like all of your children, there may be a difference of opinion and the children may “vote” on what’s to happen to you. Otherwise, they’ll end up in court.
The more you discuss your wishes with your Health Care Power of Attorney, the better prepared he or she will be when decisions need to be made. Share your choices about specific treatments. For instance, would you want to be taken off a ventilator, if you were in a coma with limited brain function and with no hope of recovery? What if there was a slim chance of recovery? The decisions are not easy. Neither is considering such life or death matters.
A Medical Power of Attorney is a key estate planning document. Regardless of the emotional discomfort, planning for health-care decisions can provide peace of mind for yourself and loved ones.
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Reference: Kiplinger (April 29, 2021) “Now Is the Time to Protect Your Health Care Decision Making Rights”