End of Life Care and Your Will

Even the thought of becoming incapacitated can be chilling. Making decisions regarding what happens if incapacity does occur and making end-of-life care decisions can be difficult. But, it is very important to sign the appropriate legal documents to ensure your rights and wishes are respected when you are no longer be able to communicate your desires. Sometimes a medical provider or hospital will accept the decision of the “next-of-kin”, but it is much better to be prepared and have the peace of mind that accompanies signing these documents.

You should hire an estate planner to prepare these documents for you. Here is what you need to know about end-of-life care.

A durable power of attorney is a legal document that allows you to appoint someone to act and make decisions on your behalf relating to financial matters.  The durable power of attorney can grant all powers that you have yourself to deal with your property or can be as limited as you desire.  A durable power of attorney can be limited to a single transaction if that is the need or desire.  The durable power of attorney can be effective instantly, or can “spring” into effect when it is needed – usually, after the opinion of two doctors that you are incapable of making decisions on your own anymore.  The latter is the most common type of durable power of attorney.  The person you appoint must assume the role as your attorney-in-fact and, in so doing, assumes a formal fiduciary relationship and the fiduciary duties that go along with that role.

A healthcare power of attorney allows you to appoint a person you trust – a legal surrogate – to act and make decisions on your behalf when you are unable to do so physically or mentally.  This type of document is different than the durable power of attorney mentioned above because it has nothing to do with your finances, but applies to decisions about your person, i.e., who your doctor is, whether to undergo medical treatments, where you will live, who will live with you, the type of care you will receive and so on.  Without a healthcare power of attorney, a guardianship of your person would be required to make the same decisions.

A healthcare power of attorney is not just used for end-of-life care but allows your surrogate to make decisions if you are temporarily incapacitated following an accident or illness.  As long as the authority granted is not being abused and the medical facility is accepting it, a healthcare power of attorney is a good and less restrictive alternative to a guardianship, particularly, when the incapacity is temporary.  A guardianship can be difficult and expensive, so a healthcare power of attorney can avoid that process in some cases. Therefore, you may want to consider creating this document well in advance of any known illness or end of life issues.

Different states refer to living wills under different terms. One state might call it a “healthcare declaration” and another state may call it a “medical directive.” These documents are meant to clarify your wishes regarding whether life-sustaining treatment should be administered, if you are in a vegetative state or when there is little hope of recovery with any quality of life. Simply put, they document whether you want your family to tell the doctor to “pull the plug”.  A living will effectively communicates to your family your desire about whether to preserve your life in a terminal state.

The Constitution protects your right to accept or refuse treatment, and case law from past court decisions guides how the legal system may deal with a living will in the event of a dispute. There are some laws that define when a living will is applicable, and your trust lawyer can help make sure your living will ensures you receive life-sustaining medical care on your own terms if that is your desire.  Some people want the opposite, which can also be honored in a living will, if established.

Remember: A Last Will & Testament – a Will – is different than a living will. A Last Will & Testament addresses inheritance and is not effective until after you die.  A Last Will & Testament dictates to whom your property will pass after death. A living will is effective during life and establishes whether you desire life-sustaining treatment to be administered if your life cannot be saved or you do not stand a good chance of surviving with any quality of life.

A Declaration of Guardian in the Event of Later Incapacity gives you a say in who may be appointed as guardian, if you later need one.  The Court shall honor your selection and shall appoint the person you name as your guardian, as long as it finds the person is suitable and not disqualified.  You can also indicate in the Declaration of Guardian in the Event of Later Incapacity person who you do not want to be appointed.  Obviously, nobody expects to ever become incapacitated, so it is difficult sometimes to see the need for this document.  But, of course, these documents are executed prospectively in the event something unexpected occurs.  Having these documents makes the decisions of your family members on your behalf much easier, than if you do not have these documents.

A “Do Not Resuscitate Order also known as a DNR is a legal document that informs your doctors about whether you want to be resuscitated if you were to “Code” – meaning, if you are dying. You tell the medical staff, when you are not able, whether you want extraordinary measures to be applied in order to save your life when you are dying.

Yes, absolutely!  If you become incapacitated, you will want your family to have some direction about your desires.  Obviously, no one expects to ever become incapacitated, so it is difficult sometimes to see the need for these documents.  But, of course, these documents are executed prospectively in the event something unexpected occurs, not because a person knows they will occur.  Having these documents is way more advantageous than not having them and makes the decisions of your family members on your behalf much easier than if you do not have them. Besides, if you are going to hire an estate planning attorney and pay them to prepare an estate plan for you, you should absolutely have them prepare all of the documents needed for your care in the event of later incapacity.

The attorneys at Spencer, Johnson, & Harvell, PLLC can guide you through the maze of these documents and help you understand the effect of each and why each is so important; particularly, if you were to ever become incapacitated. You would certainly want your end-of-life wishes respected. Get in touch with us today to learn more.