The Importance of Appointing a Health Care Agent

It has been almost ten years since the case of Terri Schiavo was argued in Florida courts.  In 1990, Terri Schiavo collapsed in her Florida home in full cardiac arrest.  She suffered brain damage due to lack of oxygen and as a result, could not make medical decisions for herself.  According to doctors, Ms. Schiavo was diagnosed as being in a vegetative state.  Several types of therapy were attempted, hoping her condition would improve. In 1998, Michael Schiavo, Terri’s husband and guardian, petitioned the Florida state courts to have her feeding tube removed.  Michael Schiavo argued that Terri would not have wanted life-prolonging measures including a feeding tube.  Ms. Schiavo’s parents opposed this arguing that she would want have wanted to continue life-prolonging measures.  A trial to determine her end of life wishes included eighteen witnesses.  This court battle went on until 2005, including appeals in the state and federal courts.  Ms. Schiavo ultimately passed on March 31, 2015, after her feeding tube was ordered removed.

As  noted above, this legal battle spanned fifteen years.  The sole question in this case was to determine what Terri’s wishes would have been regarding life-prolonging procedures.  With a comprehensive health care proxy and living will, Ms. Schiavo would have been the one to determine what her end of life wishes were.  Although a health care proxy probably would not have prevented disagreement between Terri’s parents and husband regarding the course of treatment, maybe the legal battle could have been avoided or minimized with proper planning.

New Study Shows Younger Individuals May Be Affected By Alzheimer’s

A recent study in the New England Journal of Medicine reports that an Alzheimer’s gene may impair middle-aged memory.  According to the study, people with a variant of the APOE gene, which increases the risk of Alzheimer’s in old age, may also show memory impairment earlier than researchers once thought.  Researchers followed 815 people ages 21-97 with normal mental function.  On the Auditory-Verbal learning test, a test of a person’s ability to learn and remember, carriers of the APOE gene showed declines beginning in their 50’s.  Non-carriers of the gene did not show declines in memory until their 70’s.  The results of this study emphasize just how important preemptive estate planning is.

What Is Elder Law?

Elder law is an area of law that encompasses any legal issue facing the elderly.  It is often associated with estate planning but can involve much broader social, economic and health related difficulties facing aging Americans. Some of the concerns that become more important to us as we grow older and may require more careful planning include:

  • estate planning
  • planning for a long term medical care requirement including Medicaid planning
  • planning for incapacitation with the use of durable powers of attorney and health care proxies
  • issues requiring guardianships and conservatorships
  • elder abuse and other issues involving nursing homes or skilled nursing facilities
  • SSI, SSDI and other government benefit programs
  • special needs trusts

As the elderly population grows each year, so will the issues facing these individuals requiring a comprehensive estate plan that addresses long term care needs.  Often times, planning  must take into account strategies involving financial planning, estate planning, and other asset protection techniques.  Other times ancillary issues involving home health care, skilled nursing facilities, long term care insurance and disability benefits must be addressed.  Elder law attorneys, geriatric or nurse case managers, financial planners and professional well versed in benefits planning are often involved to ensure all needs are met.  Advanced planning can help to minimize the problems and stress associated with these issues.

The Difference Between A Health Care Proxy and Living Will

Health Care Proxies and living wills in Massachusetts both address situations in which medical decisions are made on your behalf when you cannot communicate your wishes for yourself. A Health Care Proxy allows you to designate someone (called your Agent) to make decisions on your behalf should you be unable to do so whereas a living will allows you to list certain treatments you want or do not want to be withheld should you become terminally ill and unable to communicate at that stage. Although Massachusetts does not recognize living wills at this time, this document can be a useful in guiding your Agent during a very emotional time.

As with any estate planning you undertake, it is recommended that you discuss your intentions with your Agent so they understand and are able to follow your wishes regarding medical treatment and accept the appointment. If your Agent understands what your wishes are and how you would have made decisions if you were able, the process will be much more effective and less stressful.

Do I Need A Will?

I get this question quite often. Family members and friends falsely assume that estate planning is for the “rich”. They think that they are too young to need a Will or they don’t have enough money to worry about planning. I explain that sometimes the headaches associated with a lack of planning usually have nothing to do with the size of a persons estate. Unfortunately, it takes the death of a loved one, an extended stay in a nursing home or a custody battle over a child to realize how crucial planning can be for young and old, rich and not so rich.

BASIC ESTATE PLANNING WILL GUIDE OTHERS IN MAKING DECISIONS

Even the simplest of estates require basic documents to ensure your affairs are in order. These documents will allow the persons you nominate to manage your estate if you are unable to make decisions for yourself and an executor to distribute your estate according to your wishes after death. If you die without a Will (also referred to as intestate), your estate will be distributed according to the laws of your domicile.

The following documents are a good starting point to give you the peace of mind that your wishes will be respected should anything happen:

  • Will – A Will is a legal document that gives instructions to be followed after your death. Your Will allows you to name your beneficiaries, a guardian for your children, as well as an executor to manage and distribute your estate after death. Note: Not all assets will be distributed according to the provisions in your Will. Certain assets that have their own beneficiary designation will pass outside of the probate process according to beneficiaries you have chosen. Some examples of assets that will bypass the probate process are living trusts, life insurance, assets held as joint tenants with right of survivorship, payable-on-death accounts, and retirement accounts.
  • Durable Power of Attorney – A durable power of attorney allows you to name someone to manage your financial affairs should you become incapacitated and not be able to make decisions on your behalf.
  • Health Care Proxy – A health care proxy is similar to a durable power of attorney. Your health care proxy allows you to name someone to make health care decisions on your behalf should you become incapacitated and cannot make decisions for yourself.

Failing to plan could force others, including the Probate Court, to make these crucial and often emotional decisions for you. Others may or may not, for whatever reason, make the same decisions you would have. Taking these basic steps will give you the peace of mind that your wishes will be respected. Please contact us if you would like more information or would like to schedule a consultation.