Answers About Health Care Legal Documents

The following is an excerpt from A Parent's Guide to Wills & Trusts: For Grandparents, Too (2nd edition), copyright 2007, 2008 Don Silver and excerpt reprinted with permission.

QUESTION: I am a widow. I have two sons. I have a wonderful relationship with one of my sons, John, but things aren’t going so well with my other son, Bill. If I become incapacitated, I would only want John making personal decisions for me, such as where I’m living and my medical decisions. What documents can I sign to make sure John will be in charge?

There are several health-related documents you can sign. Some may overlap one another.

Health and personal care documents

Different states have different documents or different names for the documents. While you are still competent, you should spell out your health-related choices in various documents: a durable health power of attorney (or an advance health-care directive or a health-care proxy), a living will and a nomination of conservator.

Durable health power of attorney, advance health-care directive and health-care proxy

You’re probably familiar with the concept of a power of attorney where you give someone the ability to act on your behalf. You can have a power of attorney for health matters.

A durable health power of attorney is a document by which you appoint an agent to make health-care decisions for you if you are unable to do so for yourself. The decisions can be big (pull the plug) or small (e.g., you need a minor operation, you’re unconscious and there are two types of possible procedures the surgeon can use). Ordinarily, there is no court involvement with a durable health power of attorney. A properly written and signed form should be honored by health-care professionals.

Since a power of attorney can give your agent a great deal of power over your future, you’ll want to choose your representative wisely. The agent you appoint is called an attorney-in-fact although in fact, the person doesn’t have to be an attorney—it could be your spouse, child, a friend, etc.

You need to trust your agent completely. You should consider whether that person has any financial conflict of interest. For example, will that person inherit from you if the plug is pulled for you? Since the person(s) you select as your agent usually inherits from you, too, you should not rule out a person just because of their status as a beneficiary. However, keep this possible conflict in mind.

Also, be sure that the personal or religious beliefs of the persons you select will not prevent them from carrying out your wishes.

The “durable” in a durable power of attorney means that the document is still valid even if you become incapacitated.

Similarly, an advance health-care directive lets you appoint an agent and give instructions about your health care whether you’re in a coma, terminally ill or just unable to make your own decisions. Health-care proxies operate in a similar fashion.

Living will

Don’t confuse a living will with a living trust. Don’t confuse a living will with a will either. A living trust and a will are asset-related documents. A living will is a health-related document that deals with just one big issue—pulling the plug.

This document is usually put into effect if you have an incurable and irreversible condition that (a) will result in your death within a relatively short time without the administration of life-sustaining treatment or (b) has produced an irreversible coma or persistent vegetative state.

Under such circumstances, a living will directs your physician to withhold or withdraw treatment that only prolongs an irreversible coma, a persistent vegetative state or the process of dying. Such treatment could include the use of a respirator as well as artificially administered nutrition and hydration.

Nomination of conservator for day-to-day living decisions

A nomination of conservator is sometimes known as a nomination of guardian. This type of document is put into effect only after you become incapacitated.

Your representative under this type of document is known as a conservator. In the document you name your choice for conservator and that person applies to a court to act on your behalf. The appointment happens after there is a court proceeding to determine your incapacity.

There are two types of conservator—a conservator of the person and a conservator of the estate.

A conservator of the person makes your day-to-day living decisions, including where you’ll be living.

A conservator of the estate handles your money and other assets that aren’t already managed under other documents such as a living trust and a durable power of attorney for money matters.

Who should be your conservator of the person? In some cases, you might want two people to make decisions jointly for you rather than relying on the judgment of just one of them. In your case, you just want John involved.

Since a representative acting on your behalf under a nomination of conservator would be entitled to a fee for the services provided to you, this kind of situation sometimes brings relatives out of the woodwork who are not close to you. That’s why you’ll want to sign a nomination of conservator stating your choices for a conservator.

Medical identity theft

A growing area of concern is medical identity theft. If someone gets treatment under your name or health insurance policy, you may be more concerned by the effect on your medical records than on your finances. Someone posing as you can have their medical information (e.g., allergies to medicine and current medications) entered under your name.

A medical imposter may affect you in other ways. For example, erroneous information may cause you to become uninsurable or unemployable (if you fail the pre-employment medical exam).

That’s why you’ll want to file a report right away with your health insurer if your health-care ID or pharmacy cards are ever lost or stolen.

For tips on preventing or resolving medical identity theft, see
www.worldprivacyforum.org/medidtheft_consumertips.html.

HIPAA consents

Make sure you sign HIPAA medical consents so your representatives are able to act on your behalf for treatment, payment and insurance issues.

HINT: For any document where you name a representative, also name alternate choices in case the first person you have in mind can’t or won’t serve on your behalf.

You may want to have both a durable health power of attorney and a living will. If you travel a lot or have residences in more than one state, get advice on signing forms in more than one state since states usually have their own requirements.

One final thought. You may also want to have a living trust to minimize any court involvement (and legal fees and court costs) concerning your financial affairs.

Comments

[Jonathan]

I work with advance directives quite frequently, and I feel bad for the people who do not have advance directives in place before the worst happens. Advance Directives give people the opportunity to clearly define their wishes should the worst happen -- too often, family members involved in care decisions do not know or do not agree with the patient's wishes.

In my experience, a well crafted Living Will can define what treatments the patient wants and does not want, and be very specific based on situation or circumstance. I've seen Living Wills that define when the patient wants to be kept in a hospital, when they want respite care, when they want lab work, when they want comfort care, etc. A Living Will should be backed up by a Health Care Proxy, though, since it is impossible to predict any eventuality.

[Perx]

Hi. First, thanks for your time. I have an important question. I'm trying to help my mom. I'm her Health Care Proxy. However, my sister is her Conservator (estate and body I think). Which one takes precedence? It's important because my sister kindof hates my mom so isn't helping out of spite, and i'm very caring about the situation and want to help.

Thanks!

[FMF]

Perx --

I'll post your question for my readers in a couple weeks. Stay tuned.

[Amelia U. Leach, RN]

I am a RN and the health care proxy inititaed in 2005 by my mother in she had full capacity. Her daughter holds durable POA effective 1992.
POA is attempting to have my HCP revoked alleging a conflict of interest as the principle now resides in a LTC facility in which I work per diem as a supervisor ( 1 weekend a month). I am not invoved in direct care of the principle. Can the POA have my HCP revoked and assume all decision making for social, financial, and medical activities for the prnciple?