We’ve recently been working with a client whose elderly father had a very good estate plan in place. The plan included a pre-marital agreement with the father’s second wife (the client’s stepmother), a will, a revocable trust agreement, a durable power of attorney, and an advance medical directive with medical power of attorney. The estate planning documents were prepared by a very capable trusts and estates lawyer a little more than a decade ago.
Problems developed for our client when his father’s physical health and mental capacity declined and his stepmother was unable (or unwilling) to continue caring for our client’s father. Neither the client’s father nor his stepmother accepted that they needed assistance and they refused to consider any changes to their living arrangements until a crisis occurred that resulted in them having to separate. Our client had to assume responsibility for all his father’s affairs, including his care in an assisted living facility and other needed medical care.
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Then our client came to understand the limits of his authority under his father’s advance medical directive with medical power of attorney. First, it is important to draw a distinction between an advance medical directive and a medical power of attorney, although both usually are included in a single document. An advance medical directive (AMD) generally is a so-called “living will” directing family and medical care providers in advance regarding how to handle difficult decisions about withholding or withdrawing medical care and procedures in case the person has a terminal illness or injury or is in a coma or persistent vegetative state.
The medical power of attorney part of the document gives that person’s agent authority to make decisions about the person’s medical care. Instead of directing what is to be done (as in the AMD), then, the medical power of attorney gives the agent authority to decide what should be done. Understandably, people are reluctant to give anyone else authority to make decisions about their medical care.
Therefore, many medical powers of attorney are “triggered” by some determination that the person is not capable of making informed medical decisions. Unlike most regular powers of attorney, then, a medical power of attorney may not grant any authority until a doctor (or two) determines the patient is not capable of making informed medical decisions.
Even so, our client learned that most care providers assumed the medical power of attorney gave him authority to make decisions about his father’s care regardless of whether any formal determination had been made that his father was not capable of making informed medical decisions. Everyone seemed to assume his father “needed” him to decide and that our client would just make decisions for his father. However, the primary care physician was unwilling to make a formal determination that his patient was not capable of making informed medical decisions until a geriatric psychiatrist was consulted and noted her opinion that the patient was not capable of making those decisions independently.
Once that determination had been made, it led to a consideration of the advance medical directive and appropriateness of a doctor’s “Do Not Resuscitate” (DNR) order. Here again, many caregivers and others assume an AMD and a DNR are the same or at least have the same effect. They are not the same and do not have exactly the same effect. As noted above, an AMD generally deals with questions regarding life-prolonging treatments and procedures when the patient has a terminal illness or injury or is in a coma or persistent vegetative state.
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A DNR, on the other hand, orders that a patient not be revived if breathing or heartbeats cease, regardless of whether the patient otherwise has a terminal illness or injury from which death is imminent. A doctor may sign a DNR if the patient consents or has an AMD or if the patient’s authorized agent under a medical power of attorney consents. Our client was relieved that his father had given direction in the AMD and that his father’s primary care physician still had a very compassionate discussion about end-of-life issues with his father before signing the DNR, even after determining that his father was no longer capable of making informed medical decisions.
“Death with Dignity” became a catch phrase several years ago. Our client came to question that phrase as his father’s independence and dignity have been withering along with his mind and body—there really doesn’t seem to be much dignity in the later stages of the aging process for too many people. But a well-thought-out estate plan including an advance medical directive with appointment of medical agent can ease the burden on family members or friends trying to assist someone through the process.
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MartinWren, P.C., has three attorneys with more than 70 years’ combined experience assisting clients with their estate planning, including advance medical directives with medical powers of attorney. We provide individualized counseling based on our clients’ personal situations and beliefs—not database documents. Please call and ask to speak with one of our experienced estate-planning attorneys about easing the burden on your family in dealing with the inevitability of your death and probability of your need for assistance and care as you age.
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