Although all people should have similar Estate Planning documents such as a Will, Healthcare Proxy and Power of Attorney, not all documents should be the same. Individuals should have special language included within their documents that apply to their particular situations.
For instance, a person with Multiple Sclerosis will have different needs than one with ALS, Chrones disease or another debilitating illness. The only commonality among these situations is that each one will have an adverse affect on a person as the illness progresses. The estate planning documents drafted to address these peoples’ needs could include additional language or possibly a side letter from the individual that explains specifically what he or she wants, needs, or does not desire respective to appropriate medical devices or procedures as their illness progresses.
For instance, a person may write their own advanced medical directives to be incorporated within their Healthcare Proxy or Living Will with instructions regarding how to handle certain stages of their medical deterioration, including whether or not they want to be kept alive by heroic means. Measures included in such directives may include use of a resuscitator or G-Tube. Each person may decide the track of his or her individual care and incorporate this within their entire estate plan.
Although a lawyer should not “play doctor” in these situations, it is important for the attorney preparing these documents to ask enough questions to ensure that their client has a good understanding of the potential adverse physical and mental effects on their body. There is no shortage of material available on the internet or from national or local societies that provide assistance to people suffering from illnesses.
Clients must be educated to know what to include or exclude from their estate planning documents. Frequently attorneys don’t ask sufficient questions to know what their clients want or present sufficient options.
Certainly, when clients are alive and competent, they may make their own decisions, including changing or revising their pre-designated healthcare options. However, a problem arises when a client becomes incapacitated or otherwise does not have cognitive ability to make intelligent decisions about his or her own healthcare. Unfortunately, when this occurs, a client often doesn’t believe that he or she has lost ability to make informed decisions, despite their family’s and medical personnel’s belief that they are no longer thinking clearly about their care.
To address this circumstance, it’s a good idea to have a “trigger” that designates when one or more individuals, usually a physician, will have the ability to declare the client incapacitated to the extent that he or she may no longer exercise control. At that point in time, a backup person or committee of individuals will be designated to take on the responsibility of making decisions for the incapacitated person.
It is important to emphasize however that with proper clarity within estate planning documents, the nominated agent should not really be making decisions at all, but rather, will be carrying out the requests of their friend or family member, who has pre-designated the specific requirements and procedures they want for their own care.
Sometimes a person has a temporary lapse in capacity due to a setback such as pneumonia, a reaction to a medication or possibly a situation such as a urinary tract infection. In these situations, it is important that the wishes of the principal are carried out to assure satisfaction when he or she regains control of their own medical care.
In any event, it is important to prepare estate planning documents while a person is competent to do so. But there should be as much specific direction included as possible, so when and if they have to be utilized, there will be no question about the procedures to be implemented at that time. If there is any specific illness, such as cancer, Alzheimer’s, Parkinson’s, ALS or other debilitating illness, there should be specific mention of the fact that this condition existed at the time the documents were prepared.
By: Hyman G. Darling, Esquire
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