While most people are motivated to get their estate planning done because they have concerns about what will happen to their property upon their death or taking care of minor children, there is another reason why you should put an estate plan in place and that is planning for a period of disability, or emergency medical planning. Many people fail to seriously consider planning for disability, because we do not always believe that we will or could become disabled. Medical science has done some amazing things to extend our life expectancy and made it possible to live longer with a serious illness. Most of us are living longer.
Disability planning is planning for your possible mental disability or physical disability that is so severe that it leaves you unable to manage your personal and business affairs. Disability wears many faces. Your disability could be hearing impairment, cognitive, vision loss, ambulatory, or it could mean you are no longer able to live independently. The reality is that many of us will not necessarily die without first suffering some type of disability. The disability could be short term or long term. Statistics show that 70% of will likely experience some period of disability during our lives. Disability isn’t something reserved for the 65 and older crowd. 20% of those who need it will need it for longer than 5 yrs.
While accidents do happen, it is not the norm to go straight from healthy to dead. There is typically some period of decline. During our lifetimes we will suffer health setbacks and recoveries. It is during the times of set-back that having certain estate planning documents in place becomes crucial. Obtaining the right to “speak” for someone who is still alive can be very challenging. During a time of emotional crisis, fear can drive people to be uncooperative in helping themselves by not allowing someone else to provide assistance to them. Taking control of things after a death is easy and not as urgent. It is often the unexpected incident that creates an urgent need to make decisions for someone. While getting a Will or a Trust gets all the glitz, glam, and red carpet treatment in estate planning, it is the disability planning documents that are the supporting actors who often come in and steal the show.
Most people want to have some say in who is making decisions on their behalf. The best time to decide who that person is going to be is when you are not experiencing a crisis. We are going to look at 4 documents that convey your needs and wishes around medical events: medical power of attorney, HIPAA Release, Directive to Physicians and Surrogates, and the pre-need declaration of guardian.
Medical Power of Attorney
The cornerstone document for medical planning is the Medical Power of Attorney. the person they put in charge is perhaps more important than the content of the documents or the specifics of the plan. Good people can save a mediocre–or even a bad plan–by the choices they make. However, incompetent people who make bad choices can make a mess of a good plan.
The typical Medical Power of Attorney is more focused on granting powers to your agent than it is on providing specific instructions about what decisions you prefer your medical agent to make. While general guidance is better than nothing, your medical agent will need to make specific decisions when called into action, not just general ones. The number of scenarios in which a medical agent may have to act are too numerous and too varied to provide specific instructions. This likely will mean that the medical agent must decide about situations that may not have been anticipated by anyone, with only minimal guidance about what the principal would have wanted. This is why it is crucial that you discuss with your agent what kind of care you do and do not want. Texas law requires your healthcare representative to make decisions based upon your known wishes. If you don’t tell them, they will not know and can’t make a decision that is likely to be what you would have done or wanted for yourself.
Medical decisions are personal and often based on emotional or spiritual values. This is one of the main reasons so many families fight over medical decisions. People have widely divergent attitudes toward medical treatment. Some may view alternatives to Western medicine safer and more effective. Differing beliefs often lead to conflict. Disagreements can easily occur over how much treatment someone should receive when he or she is of advanced age, has a terminal condition, or otherwise has a diminishing quality of life. A family member is more likely to feel comfortable expressing their disagreement with the medical agent or the attending physician because it can be perceived as loving concern. The question becomes, does your medical agent know what your beliefs are and your preferences, can they be depended upon to make a decision in line with your beliefs and desires even in the face of opposition from other family members?
The medical agent requires a different skill-set than the financial agent. While every fiduciary must be ethical, diligent, detail-oriented, and good with money, the medical agent needs to understand your views on medical care and end of life scenarios, and also have the backbone to stand up to family members, and maybe even medical experts, who may disagree.
You may revoke your Medical Power of Attorney at any time by informing your agent, in writing, that you are revoking the appointment. You should also send a copy of the written revocation to anyone who has a copy of the original Medical Power of Attorney.
The agent may exercise the authority contained in the medical power of attorney only if the principal’s attending physician certifies in writing and files the certification in the principal’s medical record that, based on the attending physician’s reasonable medical judgment, the principal lacks capacity to make health care decisions. The agent is not authorized to make a health care decision over the objection of the principal, regardless of whether the principal has the capacity to make health care decisions. Under the Medical Power of Attorney, the agent, for the purpose of making a health care decision, may request, review and receive any information, oral or written, regarding the principal’s physical or mental health, including medical and hospital records, may execute a release or other document required to obtain the information, and may consent to the disclosure of medical records, unless this right is limited by the terms of the medical power of attorney.
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