This was sent to Weiss 11.8.2017. It needs to be tweaked and linked before publishing here.
To Keep Control, Take Control
In spite of our best efforts to prevent disability or incapacity, there are times when they are simply unavoidable. The risk of disability increase with age. When this happens (not if), the best mechanism for making sure we get what we want is to have already designated people we trust to act on our behalf in those times when we cannot act for ourselves. For the Type A Control Freaks out there, this is how you exercise and keep the most control humanly available.
If you don't select the people who are going to act for you in advance, others will make the selection for you.
There are at least three critical areas of life that need our action in advance to protect our wishes: 1) legal and financial, 2) medical (both physical and mental), and 3) custody and care of minor or incapacitated adult persons other than ourselves.
The mechanisms for putting this kind of protection in place are called Basic Documents for Legal and Medical Emergencies. Such documents include: a Durable General Power of Attorney, a Medical Power of Attorney, a Living Will, and a Last Will and Testament.
Durable General Power of Attorney
Granting powers to act vicariously on one's behalf under a Durable General Power of Attorney draws upon the laws of "Agency". The person granting the power is called the "Principal" and the person receiving the power is called the "Agent." Technically the Agent is also referred to as an "Attorney-In-Fact". As a practical matter, the Agent is sometimes called a "Power of Attorney." Although it is sufficient to name just one Agent, it is far better to name a number of back up persons in order of priority.
The "Durable" part means that this grant of power persists even if the Principal is incapacitated. Under historical rules governing Agency, the so-called Agent is only able to do what the Principal who granted the authority is able to do. This means, for example, at a time when the Principal is drunk or unconscious and therefore lacks legal capacity, the agent cannot act. This is a problem when we are dealing with incapacity by reason of illness or age. These are the very times when it is most important that the power not lapse. A grant of agency is "durable" when the Agent is allowed to act even at a time when the Principal is incompetent.
A Power of Attorney can be "specific" - which means it applies only to a particular property or transaction. They can also be "general" - which means they apply to most any transaction. In certain situations, such as dealing with the IRS or local motor vehicle departments, only the specific pre-approved form of the governing agency will work. For the grant of certain powers, extra precautions or conditions must also be met, depending on local law. This generally includes, for example: the power to make gifts, or for Agents to compensate themselves, or to exercise community property rights of a spouse, the power to qualify for certain governmental benefits, and certain powers regarding retirement accounts.
A General Power of Attorney can be a very dangerous document. The Agent has the power to clean out your bank account, sell your car, or mortgage your house. Because of this, there are a variety of mechanisms to protect against the abuse of Durable General Powers of Attorney. Some attorneys make the powers "springing," which means they do not go into effect UNLESS the principal is incompetent. In my experience, the trouble with this approach is that sometimes institutions concerned about their liability will decline to act on the basis of a springing power unless there is a court order determining that the Principal is incapacitated. This frustrates everything since the whole point of the document is to avoid going to court.
Another alternative method for protecting the Principal from abuse by the Agent is to make the document a "bearer document" - which means that the Agent must possess the signed original or a certified copy of the signed original, and then keep the signed original in the offices of the Principal's attorney, with a custodial agreement that the document will not be released unless 1) the Principal asks for it in writing, 2) the Principal is determined to be incompetent by one or more physicians, 3) the Principal is missing for some period of time and cannot be located, or 4) the lawyer has done a due diligence investigation on behalf of the Principal and determined that it is in the best interest of the Principal to release the document.
Medical Powers of Attorney and Advance Directives
Medical Powers of Attorney operate just like a Durable General Power of Attorney, only they are a specific grant of power over the Principal's physical health and well being rather than financial or property interests. A Medical Power of Attorney may also grant authority regarding mental health care issues, and medical directives or advance directives for specific medical conditions or procedures. Under a Medical Power of Attorney, the Agent may be called a Proxy, or Surrogate, or Advocate, depending on the language adopted by the local legislature and by local tradition among health care providers.
An "advance directive" or "medical directive" is the exercise of a decision regarding some form of medical care in advance of the need for such care. Often, health care providers or facilities will require the exercise of such medical directives regarding the particular services, treatments or procedures provided by such professional or facility. For example, prior to operating, a surgeon may identify multiple potential outcomes and get authorization for what may or may not be done in response.
It is extremely difficult, if not impossible, to predict in advance the particular facility or treatment that a person may come to need in the future. Once incapacity occurs, if there is no one to call the shots, it can result in diminished health care choices. For this reason, it is important that a Medical Power of Attorney not only exercise any medical directives that are already known, but also authorize the Agent or proxy for health care purposes to exercise such medical directives if the Principal has not previously done so.
In general, if you are able to communicate your wishes concerning your health care, they will be honored even if you have a Medical Power of Attorney. More than once, I have seen situations where the Agent under a Medical Power of Attorney called the paramedics or requested some medical procedure, only to have the Principal refuse to accept it. Absent certain other factors, the wishes of the Principal will prevail notwithstanding any grant of power to the Agent or Surrogate.
Living Will
There is a significant amount of overlap between Medical Powers of Attorney and Living Wills. Both of them deal with medical decisions when the Principal is incapacitated. The most conspicuous difference is that the Living Will specifically deals with End of Life issues, and authorizes the Agent to decline and sometimes withdraw medical treatment even if it is likely to result in the death of the Principal. For this reason, sometimes a Living Will has been called a "pull the plug" document. However, that is not how it actually works in real life. Most of the time, the Living Will is exercised in a manner to prevent the proverbial plug from being inserted in the first place, so there is no need to pull it.
The exercise of Advance Directives is an area of significant overlap between Living Wills and Medical Powers of Attorney. Living Wills often exercise or authorize the exercise of Advance Directives resulting in mortality. A Living Will should not be confused with a "DNR" or Do Not Resuscitate instrument. Although there is significant variation from place to place, a DNR is generally a document that is only issued or implemented when a person is in hospice care or has a condition with a high probability of mortality.
I have worked with Living Wills for decades. Not long ago, these documents were cutting edge, and considered to be aggressive. Now they are recognized by statute in most locations. As a result, the reason for which they ultimately get used has evolved. Decades ago, the primary concern was the commitment of physicians to keep a patient alive no matter the cost or quality of life. What I have observed in recent years is different. Today, physicians are concerned about 1) not getting sued, and 2) maximizing revenue. As a result, when a patient is terminally ill, to accomplish both objectives, there is a tendency to over implement tests and procedures. As a result, sometimes the Agent under a Living Will finds it necessary to intervene and stop or mitigate the number of tests and procedures when the Principal is not going to recover and death is inevitable.
Last Will and Testament
The Last Will and Testament is the oldest and best known among the Basic Documents for Legal and Medical Emergencies. Although a Will has other purposes beyond the scope of this article, there is one particular function that is critical to protecting families.
In a Will, a person can designate who they want to have custody of a minor or incapacitated adult child or children. The reason this gets put in a Will is that a Will is a special instrument that, although it is hearsay and the Testator is deceased and not able to appear in Court, it can still be admitted into evidence. This makes a Will an effective mechanism for getting your intent concerning who will have custody of children or others into evidence even when you are no longer available to testify.
When Are Updates Required or Appropriate?
Once implemented, your Basic Documents for Legal and Medical Emergencies will not last forever. They have a shelf life. They depreciate over time. If too old, there are situations in which they will simply not work. More than once, I have had the experience of an institution declining to honor one or more of the Basic Documents for Medical and Legal Emergencies simply because they are too old. Even after attorney letters declaring the documents to be valid and enforceable, they may be ignored as a matter of policy or practice. This is highly frustrating to all involved when it happens.
A general rule of thumb for updates is roughly every five years. This time may be shortened or extended based on a variety of factors. Updates become more important if not necessary when: there is a change in marital status, finances, domicile, children, health, or other personal circumstances. Updates may be less critical when there are no material changes in family, finances and/or relationships.
Decision Makers
It is critical to implement your Basic Documents for Legal and Medical Emergencies to name decision makers on your behalf for 1) your finances and property, 2) your health and body, and 3) any minor or incapacitated adult persons for whom you have legal custody. Every person over the age of 18 should implement these documents. This is a coming of age or rite of passage issue. As children become adults, parents who wish to empower their children to function as adults will help their adult children put these Basic Documents in place.
You either have your Basic Documents for Medical and Legal Emergencies in place or you do not. If you have them, they are either up-t0-date or not. If you are in the "not" category for either issue, take action. Engage qualified counsel to help you implement or update your Basic Documents for Medical and Legal Emergencies.
Basic Documents for Legal and Medical Emergencies