Legal Tools That Give You Control at the End


Many people have fears about ending up incapacitated, unconscious and sustained only by the mechanical rhythms of life?support equipment. But even then, the law lets you control your own situation, by means of advance directives. They come in two forms, and almost every state authorizes at least one of them. Health Care Power of AttorneyPowers of attorney are described at length in the preceding section, but this particular variety is worth noting again because it lets you designate a person who shares your beliefs to be your agent and make health care decisions when you can't. Every state except Alabama and Alaska authorize holders (or agents) of health care powers of attorney to withhold or withdraw life support. Appointing this person is especially important if you believe that some of your family members may be reluctant to honor your wishes. Many states forbid naming more than one agent to share in the decision making. But it's a good idea to choose an alternate person to make sure that someone is available when needed.A Living WillYour other option is to write a living will. Forty seven states and the District of Columbia have laws governing this written document in which you instruct your family and/or doctors about your wishes regarding life support. (Massachusetts, Michigan and New York don't have explicit laws validating living wills, but their state courts have upheld them as legal documents.)Most living will laws apply only if you are terminally ill or permanently unconscious, and they generally state that life sustaining technology should not be used to prolong life. In some states, the living will of a pregnant woman will not be honored.Many experts favor executing both a living will and a health care power of attorney to ensure the best protection of your rights.The specifics of a living willA living will has two distinct parts:
First, it says specifically when the instructions included in it become effective, based on your medical condition and prognosis for example, only if you are permanently unconscious or terminally ill.
Secondly, it names what course of life sustaining action you want or don't want followed if you should end up in such a state, including: artificial nutrition and hydration (a feeding tube or intravenous fluids), mechanical ventilation (a respirator), resuscitation (including CPR), antibiotics, and kidney dialysis. As crucial as a living will is, you probably won't need a lawyer to draw one up. Preprinted forms for writing a living will and for designating a health care power of attorney that are tailored to the laws of every state are available free of charge from the advocacy group Choice In Dying.If you live part of the year in another state, be sure to complete forms for both states.You can generally add to the forms, adapting them to your specific needs and concerns. It's a good idea to discuss possible additions with your doctor or with Choice In Dying. That will help you avoid writing your wishes in such a way that you accidentally preclude treatment you would want or permit treatment you don't want.In any event, discuss your plans and options with your family physician to make sure you understand the medical ramifications of your decisions and that the doctor understands and agrees with your wishes. Make sure, too, that he or she practices at hospitals that will uphold them. If not, you might want to change doctors. While most states have their own variation of a living will law, all states and the District of Columbia grant civil and criminal immunity to doctors who act in accordance with a living will. But they are not legally bound to.If there's an emergency, you may be attended by an unknown doctor who won't abide by your wishes written or otherwise. The following steps are worth trying, though they may be difficult in practice, especially in a critical care situation: Your family could bring in your family physician as a persuasive force, find another physician at the hospital who will agree to relieve the attending physician (the physician of record), or transfer you to another hospital.As with conferring power of attorney (discussed above), you should make a living will when you're of sound mind, that is, able to make decisions on your own behalf. Most states require two adult witnesses who aren't relatives be present at the time you sign the living will. In some states, people who stand to benefit from your death, such as heirs and insurance beneficiaries, are not allowed to be witnesses.Once you've written your living will, it's a good idea to review it every year or so. If it no longer reflects your wishes, you should change it or revoke it entirely by writing a new one. Make sure all your family members, other appropriate people and your doctors have copies, and ask your doctor to include a copy in your medical records.Click here to learn about help that is available for elders. Help Your Family Help YouIt's probably not enough just to prepare these legal expressions of your wishes. Take the time to personally discuss them with your family. A clear understanding of your intent will help everyone more easily honor your wishes. You can help eliminate any second guessing and avoid the interference of an uninformed or disapproving relative who could otherwise cause conflict and delay. You could even relay your instructions in a conversational way on videotape.If You Leave No InstructionsIn some states, if there is no clear and convincing proof of your desires, you must be kept on life support. In others, if you haven't written a living will and have not given someone durable health care power of attorney, the medical decisions will fall to your next of kin. He or she will have the legal right to tell doctors whether to pursue so called extraordinary measures to keep you alive.Which relative has seniority? The responsibility falls first on a guardian, if one has been appointed through the intervention of a family member or the state; if no guardian has been appointed, then it falls to a spouse; if no spouse, then to adult children; if none, then to a parent, if one is alive.While the decision rests with whoever ranks first in this chain of command, if someone lower down disagrees with the stand in's health care decision, any action must be postponed if possible until he or she can go to court and contest the decision. So, for example, if a desperately ill patient's adult children don't agree with her spouse about her care, they can ask a court to block the spouse's decision for the parent's medical care.In the other half of the states, the laws are vague regarding the next of kin's rights to make deathbed decisions. There is a presumption that they have the right, but an attending physician is not bound to abide by their decision. If the doctor does not accede to the next of kin's wishes, however, then the spouse or adult children may have to find another doctor or go to court.For more information on your state's law, call Choice In Dying (click here for their number). For More Information
Choice In Dying (formerly the Society for the Right to Die; 200 Varick St., 10th Floor, New York, NY 10014 4810; 800 989 9455, 212 366 5540). This non profit organization works for the right of patients to make their own medical decisions at the end of life and provides information on the issues surrounding terminal care. Call to receive free, state specific documents with which to write an advance directive and durable health care power of attorney.
The Hemlock Society (P.O. Box 11830, Eugene, OR 97440; 800 247 7421). Provides information and support to terminally ill patients regarding voluntary euthanasia.Help for Elders
National Association of Area Agencies on Aging (1112 16th St., N.W., Suite 100, Washington, DC 20036; 800 677 1116). The association's Eldercare Locator service can direct you to the closest agency on aging. It will also provide information on services ranging from legal assistance and housing options to adult day care and home health services.
National Academy of Elder Law Attorneys (1604 N. Country Club Rd., Tucson, AZ 85716; 602 881 4005). The academy can provide a free copy of Questions and Answers When Looking for an Elder Law Attorney. The organization won't give direct referrals to attorneys, but it sells its membership directory for $25.

Power of Attorney for the Elderly


If you're concerned that at some point in your life you won't be able to care for yourself then you may want to strongly consider appointing someone you trust will take over your affairs and that can function as your legal stand in. By creating a durable power of attorney, you grant a person of your choice usually a spouse, close friend, business associate or relative the authority to make some or all legal, financial and medical decisions on your behalf.Power of attorney agreements can cover some areas of decision making or all areas: You, as the principal (the person granting permission), are free to set the terms and the length of the agreement, defining or limiting the authority delegated to your legal stand in, who is called the attorney in fact. You can create a so called simple (or common law) power of attorney if, for example, you are going to be traveling out of the country for some time and want someone to manage your affairs while you are gone. An older person might confer power of attorney after the death of a spouse if the prospect of managing his or her financial affairs alone seems overwhelming and just not worth the worry.A WORD OF CAUTION: Because a limited power of attorney is automatically voided if you (the principal) become incapacitated or incompetent, it's important for you to create either a durable or a springing (occurs subject to an event) durable power of attorney.Before It's Too LateHard as it is to imagine not being able to act on your own behalf, it's critical that you make such contingency arrangements while you are still physically and mentally competent. You want to make sure that you will successfully confer power of attorney, without threat of challenge by your heirs, spouse or other family members who thought that the person you designated didn't have your or their best interests at heart.There are plenty of possible reasons for incapacitation or incompetence. Even becoming clinically depressed could lead to your incapacity. You could suffer the gradual loss of your abilities due to the onset of mental dementia a serious loss of intellect and memory that results, literally, in forgetting how to function and is associated with aging. Perhaps you'll be temporarily or permanently incapacitated by a stroke or fall into a coma after an automobile accident.Durable or springing durable power of attorneyEither with some differences will ensure that if you become incapacitated you won't leave your family in the lurch, uncertain how to or legally unable to take care of your affairs, except where a spouse is co owner of a joint bank or brokerage account. They otherwise may be forced to go to court to request that the state appoint one of them as your legal guardian. If you lack immediate family, the state itself may step in and appoint a guardian for you.All states, including Texas, recognize a durable power of attorney, an agreement that remains valid even if you are overtaken by a devastating illness and can no longer make decisions on your own. If you want to give someone power of attorney, and want to be sure he or she can continue to make financial, legal and medical decisions on your behalf if you become totally incapacitated, then a durable power of attorney is for you.Many states recognize a springing durable power of attorney, which is activated only when you become incapacitated or incompetent and provided you remain in that condition. This is a wise safeguard to have arranged in advance. This will aid you in the circumstance that if something disastrous occurs to you, you can be sure that a person you know and trust will take over handling your affairs.Health care power of attorneyThis document is more limited in scope than durable or springing durable power of attorney, this form allows your agent to make only health care decisions on your behalf when you can't. He or she could choose or dismiss a doctor, consent to surgery and represent your wishes about terminating life support (for more about the life support issue, see the following section on living wills and health care power of attorney).How to Confer Power of AttorneyPower of attorney agreements can be made using prepackaged legal forms that follow the laws of your state, or they can be drawn up by a lawyer for a small fee. It's a good idea to contact your banks and brokerages to see whether they require that you use their forms to grant a power of attorney.It is recommended that a power of attorney agreement be witnessed and notarized. Doing so increases the chances that third parties such as banks, creditors and hospitals will take the document seriously and honor your wishes. If the document is not legally convincing, they may challenge your designee's authority. You should sign several powers of attorney and have them notarized because some institutions will want to keep an original.To make sure your wishes are adhered to, it's a good idea to give copies of the power of attorney to family members, financial advisers and doctors, as appropriate. Keep an original somewhere safe, but accessible, in case it is needed. (A safe deposit box may not be a good choice if you are the only person with access to it.)If You Change Your MindShould circumstances change, you can revoke a power of attorney or a durable or springing durable power of attorney at any time, as long as you have the competency to do so. Simply put you just need to put the revocation in writing, following the same procedures as when you invoked it, and give copies to the concerned parties. If you become incompetent or incapacitated, a simple power of attorney will be automatically voided anyway.Seeking Legal Guardianship of Your Loved One It's great if Mom and Dad had the forethought to confer durable or springing durable power of attorney or to create a living trust while they were able. But what if they neglected or refused to give someone else legal authority over their affairs? Now they're doing irresponsible things and risking their financial or physical well being. What can an adult child do?You could seek legal guardianship from the court, or ask to have it appoint you as their representative payee to handle their social security, civil service or veteran's benefits. The court will appoint you legal guardian only as a last resort, and you'll have to prove that your parents are past the point of granting you power of attorney. To seek guardianship, you must file a petition with the probate court.As legal guardian, you can make decisions for your parents in all areas of their lives, but you may be subject to your state's supervision. Some states allow you to seek limited guardianship, whereby you are authorized to simply pay bills for your parents.If the state grants you a conservatorship, you may manage all of your parents' financial affairs but no other aspect of their lives.Once you assume guardianship of the estate and the person, you are responsible for managing their financial affairs and for supervising their actions; you'll be responsible for any trouble that they might get into or damage they might cause.The purpose of this article has been to provide the reader with a broad overview of the issues of conferring power of attorney and legal guardianship. This information does not replace the advice of an attorney. Any specific questions or situations should be directed to the attorney of your choice immediately.