When Does My Living Will Apply?

Dec 29, 2011  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Health Care Directives, Incapacity Planning

Being clear on when each of your estate planning documents, including your living will, applies is important.  A living will is an advanced medical directive, though which you provide informed medical consent for medical treatment (or the withdrawal of treatment) for a situation that potentially may arise in the future.

Specifically, your living will applies or is effective if you are in an end-stage medical condition, meaning that doctors agree there is no coming back.  Usually this means an terminal condition or an irreversible coma or persistent vegetative state.

Unless you are in an end-stage medical condition, your living will does not apply.  For example, if you have a heart attack, but are otherwise healthy, the living will doesn’t apply.  If you slip and fall on the ice and break a leg, the living will does not apply.

An example of when the living will applies:

Janice had long suffered Parkinson’s Disease.  She fell, calling out to her husband, Tom, but never regained consciousness.  Three doctors examined Janice and agreed that she was brain dead and asked Tom if Janice had a living will.  She did; Tom brought in the living will; and, after their daughters arrived to say good-bye, life support was removed.  Janice peacefully died 15 minutes later.

An example of when the living will does NOT apply:

Frank was at home with his family when he began not to feel well; his left arm hurt and it felt as though there was an elephant sitting on his chest.  Frank’s son called 911 and the ambulance took Frank to the emergency room.  Doctors diagnosed Frank with heart disease and treated him. 

Most people don’t want to be kept alive with medical heroics such as life support if there is no coming back.  For those people, a living will is appropriate and effective only when they are in an end-stage medical condition.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Should I Include Instructions for My Health Care and Burial in My Will?

Nov 28, 2011  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Final Arrangements, Health Care Directives, Wills and Trusts

Your will is used for only three things and health care instructions and burial arrangements are not included in those three things.

Your will only appoints guardians for minor children, if you have them; appoints a personal representative (i.e. executor); and, distributes your assets.  Nothing else.

Any health care instructions in a will are legally ineffective.  It’s as if they don’t exist.  Why?  Because your will is not effective until you die.  You need health care instructions while you’re alive.  Instead, place health care instructions in an advanced medical directive such as a medical power of attorney, living will, organ donation authorization, and HIPAA release.

Burial arrangements in wills tend not to work because such arrangements are made immediately after death; your will isn’t likely to be located and read until after you’re final arrangements are completed.  So, it will be too late and it won’t work.  Final arrangements should be written and placed with your other estate planning documents and other important papers.

The key to having an estate plan that works; having health care instructions that are honored; and, burial arrangements that are followed is communication.  Talk to your loved ones.

First, let your loved ones, verbally, know what you want and don’t want; then, second, put your wishes in writing; and, third, show your loved ones where you keep your important papers, including your health care documents and final arrangement wishes.

Remember, your will is only effective if you’re dead and it’s not usually read until after your final arrangements are complete.  Therefore, it’s necessary to put your wishes in other documents; and, communicate with your family so they know your wishes and know where to find your documents.

Consult with a qualified health care attorney to ensure that your health care wishes and final arrangement wishes are drafted as you wish, and drafted legally.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Where Should I Store My Original Living Will?

Nov 27, 2011  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Health Care Directives

Keep your original living will and other estate planning documents in a safe place, such as a fire safe, desk drawer, or on a shelf in your home office.

Copies of your living will should go to those named as primary and contingent health care agents.  In addition, consider storing your living will and other health care estate planning documents with Docubank (www.docubank.com), an online health care document storage service.

Docubank best ensures that your living will and other health care documents are available when you need them.  You or your attorney will fax, mail, or email copies of your living will, health care power of attorney, HIPAA release, organ donation authorization, first responder authorization, stand-by guardianship, and contact information to Docubank.  There is an annual fee.

They store these documents and issue you a wallet-sized card to keep with your driver’s license and insurance card in your wallet.  In an emergency, medical personnel can instantly telephone Docubank; which, when provided with verification of your personal identification number, will immediately fax all of your health care documents to your medical provider.

This is the best way to ensure that your living will and other health care documents actually work.  Your living will is only effectively if your doctor has a copy of it and if you are in an end-state medical condition.

Make sure that your loved ones know that you have a living will and that you don’t want to be kept artificially alive with medical heroics, if you are in an end-state medical condition.  Your health care agent has a duty to provide your doctor with a copy of your living will if you are in an end-state medical condition.  He or she cannot override your personal decision.

The United States Supreme Court has ruled that a living will is clear and convincing evidence of an individual’s intent not to be kept alive with medical heroics such as life-support and artificial feeding.  Your living will needs to be available when needed.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

The Basics of a Health Care Power of Attorney

Oct 28, 2011  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Health Care Directives, Powers of Attorney

A power of attorney is the next best thing to a magic wand.  Within a power of attorney, you authorize a trusted loved one to make decisions on your behalf.  A health care power of attorney authorizes your agent to make medical decision, if you cannot.

  • If you’re age 18 or older, you need an up-to-date, comprehensive health care power of attorney.  Your document might be called a “medical” power of attorney; it’s the same thing.
  • When you execute a health care power of attorney, you are referred to as the “principal.”
  • The trusted helper you name to help you is called an “agent.”
  • Always ask permission from your potential agent before naming him.  During that conversation, explain the duties of a health care agent.
  • Always name back-up agents as well, in case your chosen agent is unwilling or unable to serve.
  • Important characteristics of an effective health care agent include love for you, confidence in communicating with medical personnel, and ability to deal with stress and medical issues.
  • Your health care power of attorney will be effective when you are unable to give informed consent; it’s not effective immediately, only when you need it.
  • Examples of agent duties include hiring and firing doctors and other medical professionals, consenting to a blood transfusion or surgery, choosing a medical facility.
  • If you have a living will or organ donation authorization, your agent is bound to uphold these documents as they are advanced directives; you are either providing or withholding informed consent in advance for some time in the future.
  • You also need a HIPAA release.  Your health care power of attorney may include the HIPAA release or it may be a separate document.
  • The HIPAA release authorizes your medical personnel to communicate with your health care agent.

If you or your loved ones don’t have an up-to-date, legally valid health care power of attorney, consult with a qualified estate planning attorney.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Happy National Donate Life Month! Consider Organ Donation

Apr 16, 2011  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Health Care Directives

How do you feel about organ donation?  Do you want to be an organ donor?  Organ donors help to save the lives of others each day.  April is here; celebrate National Donate Life Month by including your organ donation wishes in your estate plan.

With the help of an advanced medical directive, you can include these wishes along with other important medical preferences.  Now is the time to consider this planning.  Schedule an appointment with an estate planning attorney today!

 

What can advanced medical directive do?

 

An advanced medical directive can help you plan a number of things.

  • You can outline your preferences about certain medical treatments and procedures.
  • This also includes deciding whether you wish to remain on life support if you become seriously ill. Without a plan in place, your wishes may not be followed.
  • You can choose someone who will serve as your medical power of attorney.  This person will be responsible for making sure that your medical wishes are followed.  It is important to choose someone who loves and cares for you as well as respects your wishes.
  • You can choose whether you wish to be an organ donor.  You can include your specific wishes such as whether you wish to donate all of your organs or only certain organs and tissue.

 

Should I become an organ donor?

 

This choice is your decision.

When deciding if you want to become an organ donor, consider your personal beliefs, values and opinions.

If you choose to become an organ donor, you can save up to 8 lives.  There are about 100,100 people on the organ donation waiting list.

You will be making a difference in the medical world and the world of others!

Celebrate National Donate Life Month by including your organ donation preferences in your estate plan.

If you have questions about organ donation, consult with a qualified estate planning attorney.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Estate Planning: Will My Medical Wishes Be Followed?

Mar 28, 2011  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Health Care Directives

Many people choose to outline their health care wishes in their estate planning documents.  This allows you to place control over your life in advance so that when you are unable to make important decisions, your wishes are granted.  You might have concerns about whether your instructions will be followed.  It is important to take the following into consideration:

  • Medical professionals are generally required to follow the instructions that you have legally outlined in your documents
  • Medical professionals are generally required to honor instructions given by your agent as long as these instructions are a reasonable interpretation of your wishes

 

The truth is, not all wishes can be followed. You should know that a medical professional may go against your wishes if any of the following is true:

  • The decision goes against the conscience of the medical professional
  • The decision goes against a policy of the medical institute because it violates a reason of conscience (i.e. Living Will)
  • The decision would violate health care standards or would lead to improper health care

 

If a medical professional does not degree with a particular decision, he or she must notify you and your agent.  The medical professional must have you transferred to another medical facility or another medical professional to receive treatment, if this is what you or your agent request.   

What if I am pregnant?

If you are pregnant, your health care wishes may be ignored.  This is often decided by how far along the pregnancy is, health and safety complications, and policies of the health care facility. 

If you are in your second or third trimester, most medical professionals will do their best to keep you and your baby alive no matter what your wishes state.   

If you have questions about health care directives, consult with an experienced estate planning attorney.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

4 Important Health Care Directives

Feb 18, 2011  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Health Care Directives

Estate planning involves implementation of 4 important health care directives.  Under consideration below are the organ donation form, living will, HIPAA release, and medical power of attorney.

1.  Organ Donation

Whether or not your driver’s license indicates that you are an organ donor, your estate planning attorney can help you fill out the organ donation form, indicating that you will donate your tissues and organs when you no longer have use for them.

According to the Mayo Clinic, over 101,000 people are waiting for organ or tissue transplants and will die without them.  As an organ donor, you can save up to eight lives. 

2.  The Living Will

The living will is not a will in the sense that it names your executor or distributes your assets after your death.  The living will is an advanced medical directive (aka “advanced health care directive”) wherein you state that you do not want to be kept alive by machines.

In other words, the living will states that while you want to be kept as comfortable as possible (no one needs to die in pain), you do not want your life artificially extended if you are in an irreversible coma, persistent vegetative state, or otherwise terminal and at the very end of life. 

The living will removes a great burden from your loved ones because you are making the decision, thereby removing the decision making from their shoulders.  You also avoid being kept alive for 15 years, while brain dead, as was the case of Terri Shiavo. 

3.  The Medical Power of Attorney and HIPAA Release

In the medical power of attorney, you appoint a succession of health care agents to act on your behalf.  Your agent will make medical decisions for you if you are not able to make these decisions yourself.  Your medical power of attorney should be paired with a HIPAA release so that medical professionals feel comfortable disclosing information to your named health care agents.

If you have questions regarding the 4 important medical directives, consult with a qualified estate planning attorney.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.