Differences in Advance Directive Laws Highlighted by Recent Texas Case

Jan 27, 2014  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Incapacity Planning, parents with young children

A Texas case involving a pregnant woman is drawing renewed attention to state laws about advance directives, incapacitated people, pregnancy, and the ability to make medical choices.

In late 2013, Dallas-Fort Worth area paramedic Eric Munoz found his pregnant wife unresponsive on the floor of their home. After transporting her to the hospital, Munoz discovered that his wife, Marlise, had likely suffered a pulmonary embolism that had left her incapacitated. The embolism had deprived her brain of oxygen, and left her effectively brain-dead. The doctor said they didn’t know if any damage had been done to fetus she was carrying.

Mr. and Mrs. Munoz were both experienced paramedics. They had previously discussed the question of whether they would want to receive life-sustaining treatment if they were in an unrecoverable medical condition. Eric Munoz said that his wife, even though she had not completed an advanced medical directive, would not have wanted to be kept alive artificially. He told her doctors this, but they were unable to comply with his directions because Texas state law prevents it.

Medical Directives and Pregnancy

Several states, including Texas and Washington, allow people to create advance medical directives, but do not allow the choices they make in those directives to apply during pregnancy. In the Munoz case, since Marlise is pregnant, her doctors cannot withdraw any life-sustaining treatment. Though Texas law allows people to create advance medical directives, the law specifically states that pregnant women cannot refuse to receive such treatments.

Washington Directives and Pregnancy

Like Texas, the state of Washington also imposes restrictions on advance directives made by pregnant women. The law effectively states that a woman who has created a living will or other advance medical directive cannot use that directive when she is pregnant. So, should a pregnant woman become incapacitated and have a directive that states she does not wish to receive life-sustaining treatment, her doctors are prevented from following those wishes.

Medical Choices

In the Munoz case, since Marlise did not have a directive, her husband became the person who would be able to make medical decisions on her behalf when she is incapacitated. If a similar case were to arise in the state of Washington, the same thing would likely occur. In other words, a husband of an incapacitated pregnant woman in the state of Washington could not direct her doctors to remove life-sustaining treatment even if he was sure that she would not have wanted to receive it.

The Munoz case shines a new spotlight on the important issue of medical directives. Because state laws are so different, everyone who wants to create an advance directive should always talk to an attorney in their area.

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

Be Sure to Include a HIPAA Release With Your Medical Directives

Jan 20, 2013  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Incapacity Planning, Powers of Attorney

Some people in Washington create their own medical directives, not really knowing all the relevant laws or requirements that apply. If you created a living will, healthcare power of attorney, or other advance medical directive, you should take the time to review it and make sure it includes a HIPAA release.

HIPAA stands for the Health Insurance Portability and Accountability Act. It is a federal law that applies in all states, effectively limiting who can view confidential medical information. A HIPAA release is a form in which you detail who has the right to view otherwise confidential medical records about you.

When you make a medical directive it’s important to ensure the appropriate HIPAA release language in that form. If, for example, you fall ill and are no longer able to speak to your doctors, your health care power of attorney will allow someone else to speak to your doctors on your behalf and make medical decisions for you.

If that power of attorney does not contain a HIPAA release, the person making your medical decisions may face some difficulties in reviewing your medical records. This can hinder his or her ability to make knowing choices on your behalf.

If you have recently moved to Washington and have medical directives from another state, you can still usually use these. However, regardless of where you created your advance medical directives, you need to review them to ensure they include a HIPAA release. If they don’t, you should contact an estate planning attorney for information about the best way to include such a release with your medical directives.

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

Young Professionals and Estate Planning – The Basics

Dec 03, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Incapacity Planning

If you’re a young professional who is just getting started in your career, you’re about as likely to have given estate planning thought, as you are to have given arthritis a lot of thought. But even though it’s not exactly a top priority for young people, the fact is that you need an estate plan. While it’s true that the chances you’ll be seriously injured or die are very small, the consequences of not having a plan in place if it’s ever needed can cause some serious problems in your life, as well as in the lives of your family and friends. Here’s why.

Your Estate

Many young people think that because they don’t have much property, they don’t need to worry about who gets it, should they die prematurely. But estate planning isn’t just about writing a will or creating tax-shelters to ensure you pass on as much of your estate as possible. It’s also about planning for what would happen should you lose your ability to make choices or communicate, and about who will look after your interests if that should happen.

Kids

If you’re a young professional with a child, you absolutely need an estate plan. Your estate plan will allow you to protect your child’s financial interests and ensure that a proper guardian is appointed by a court, should you lose your ability to care for the child. If you don’t have a plan, the court will have to appoint someone to care for the child as well as manage the finances until the child reaches adulthood.

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

3 Questions About Using Advance Directives in Washington

Oct 19, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Incapacity Planning

Question 1: What is an advance directive and what types are there in Washington?

The state of Washington allows for two main types of advance directives, also known as medical directives. The first type is a Washington durable power of attorney for healthcare, an advance directive which allows you to choose someone else who can make medical decisions in case you become incapacitated. The second is a Washington directive to physicians, commonly referred to as a living Will. These allow you to state the kind of medical treatment you do or do not wish to receive if you become incapacitated or terminally ill. You can also make an organ donation directive and include it with either of the above.

Question 2: If I make a durable power of attorney for healthcare, do I then lose my right to make medical decisions?

No. this is a common misconception that many people have which prevents them from creating medical or advance directives. You can create a medical power of attorney at any time. You can also change it, revoke, or alter your decisions whenever you wish. Further, as long as you remain mentally competent you are still the only person who has the right to make your own medical choices. The power of attorney only applies in situations where you loose your decision-making ability.

Question 3: Do I have to register my advanced directives?

While you should make sure that your doctors and healthcare providers can easily obtain a copy of any medical directives you make, there is no legal requirement for you to register them with any state agency.

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

Estate Planning Issues with Pregnancy

Oct 16, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Incapacity Planning, parents with young children

Becoming pregnant is a major life event, and one which should prompt you to take appropriate legal measures to protect both yourself and your new child. Whether you’ve already created an estate plan or have yet to do so, pregnancy provides you a good opportunity either to review your plan or create one. Here are two common issues pregnant women face when it comes to estate planning and their pregnancy.

Issue 1: Living Wills and Medical Directives

Through living wills and health care powers of attorney, a pregnant women can state what her medical choices are in the event she is incapacitated. She can also delegate someone else to make those decisions when she is incapacitated. However, many states have specific limitations when it comes to advance medical directives and pregnant women. If you’ve already created an advance directive before you became pregnant, you should contact your attorney and ask how the pregnancy will affect these documents.

Issue 2: Trusts and Guardians

At some point in your pregnancy you will probably think about what might happen to your child if you should die. As a parent you can create an estate plan which selects who will take over the duties of raising your child if you should die. This person, known as a guardian, can be anyone you like as long as he or she is legally capable adult. However, you will also want to provide for the child’s financial means. You can do this by creating a trust, though you need to speak to your attorney to determine what type of trust best suits your needs.

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

Making Plans for Vacation, Making Plans for Your Estate

Oct 16, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Incapacity Planning

Now that summer has passed, you and your family may have already taken your vacation. If this is the case, think about how much time you spent planning for the vacation. Think about the details you paid attention to and the possibilities you planned for. Now, think about how much time you have spent creating an estate plan.

If you’re like most people, you have spent no time on estate planning and have spent far more time planning your vacations. It can be helpful to view this disparity as an opportunity. If you have never taken any steps to creating an estate plan, you can use your vacation planning as a chance to get started.

Consider the possibilities

Let’s say you are on vacation in a faraway land and you get sick, or are injured in an accident. Who would look after your children? Who would manage your finances? Both of these questions can be problematic if you haven’t created an estate plan. However, if you plan for these possibilities by, for example, creating powers of attorney, you can rest assured that should an emergency occur you will not leave your family unprepared.

Consider your choices

What if you are a single person and suddenly need emergency medical treatment, but are unconscious? What if you are married and you and your wife have never spoken about the kinds of medical treatment you might want in a life-threatening situation, where you have little hope of recovery? If you do not have an estate plan these questions may be unanswered and your family may have no guidance when they make medical decisions for you. However, by creating a good plan you can leave behind clear guidance about the types of medical care you do or do not wish to receive.

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

Thinking About the Hard Estate Planning Questions

Sep 01, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Final Arrangements, Incapacity Planning

As a recent Forbes article illustrates, the reason many people don’t have any estate plan is not that they don’t realize they should or are too lazy to do it, but rather because thinking about estate planning requires us to confront some difficult questions. These questions involve issues about illness, mortality, and even personal regrets, and as such can be very difficult to face. Thinking about these questions early and knowing you will have to answer them at some point can greatly ease your mind as you begin estate planning.

Question 1. When should your family let you go?

If you should develop a serious illness or injury, one which your doctors do not believe you will recover from, you will need an estate plan that spells out your wishes. Even if your family is eager to maintain your health regardless of the expense, you may want a different option. Deciding what you want and speaking to your family about it is often a very difficult process, but also one that can be rewarding and lead to closer family relationships.

Question 2. Are you hiding anything from your spouse?

Some couples are very open in their communications, while for others that process is more difficult. Some spouses may even keep closely guarded secrets from one another, even for their entire lifetimes. If you’ve had previous relationships, estranged family members, or even children from past marriages, all of these issues will need to be addressed when you speak to your estate planning attorney. Even if you choose not to reveal them to your spouse, your attorney needs to know about them so your estate plan can be complete.

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

Why It’s Important to Have an Estate Plan if You’re Single

Aug 06, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Incapacity Planning, Wills and Trusts

For single people, it can often feel as if the world views you as a curious afterthought. With all the attention given to families, marriages, and couples, single people are sometimes left out when he comes to finding good advice. This is doubly so when it comes to estate planning. The fact is that single people often have a greater need for an estate plan than their married contemporaries. Let’s take a look at why.

Your Medical Wishes

Let’s say that you are single but have been living in a committed relationship for several years. Your partner has been with you at every point during that time and each of you trusts the other to make decisions that are in your mutual best interests. What would happen if you become incapacitated and need someone else to make medical decisions on your behalf? The fact is the law does not automatically guarantee that your partner will be able to make your medical decisions for you. Unless you have an estate plan, it will be up to a judge to determine who makes these choices.  It may fall to your parents or someone else, not your partner. If you don’t have a partner, it almost always falls to a close relative to make medical choices.

Your Property Choices

Without an estate plan, you have no control of what happens to your property if you should die. If you were to die suddenly, no state provides that your partner will inherit any of your property. All states have laws that determine who will receive your property upon your death, and it always goes first to your family and never to your romantic partner regardless of how long you’ve been together or what your desires are. If you wish for your partner to inherit some of your property, you will need to make an estate plan. Those without a partner can also choose anyone they wish to inherit their property with a proper estate plan.

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

3 Reasons Young Parents Need An Estate Plan

May 11, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Incapacity Planning, parents with young children

Reason 1: Your children need to be taken care of.

If you are a parent with young children, you’ve probably wondered what would happen to your children should something happen to you. The fact is, if you have not created an estate plan, your children may end up in the care of someone you would not approve. However, you can select who will replace you in the parental role by creating legal documents to name a guardian in the event of your death or incapacity. If you do not take this step, the decision about who will take care of your children will be up to a court.

Reason 2: You need someone to manage your finances.

What happens if you are involved in a car accident and suffer injuries that leave you permanently incapacitated? Who will take care of your financial obligations in this situation? Similar to the naming of a guardian for your children, if you have not chosen someone to step in and take care of your finances a court will have to do it for you. On the other hand, by developing an estate plan and filling out a few important documents, you can choose who will manage your finances in the event you are no longer able to.

Reason 3: You have specific medical choices.

Young people often do not create estate plans for the simple reason that they do not believe they will ever need them. While it is true that it is very unlikely you will ever be seriously injured, in the event you are, you have the ability to tell your doctors what kind of medical care you want to receive even if you’re no longer able to communicate. You can do this by creating an advance medical directive that states your choices in detail.

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

Mike Wallace’s Legacy Includes Dementia

May 10, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Incapacity Planning

After dying at the age of 93 in early April, former journalist Mike Wallace left behind a lifetime of work that spanned decades. He also left behind a legacy that includes the little known fact that he suffered from dementia in his final years. Experts estimate that 1 in 8 baby boomers will suffer from Alzheimer’s disease or dementia after the age of 65. Because of this, it’s important to take precautionary steps now so that if you are diagnosed with the disease you’ll have a plan in place.

Step 1: Write a living Will.

Unlike a last Will, a living Will is designed to be used while you’re still alive, but are unable to make or communicate healthcare choices.Your living Will states what your preferences are about possible medical treatments. Once created, your physicians and family will have to abide by your decisions as detailed in the document.

Step 2: Have a power of attorney ready.

A power of attorney is an important legal document that will give another person the right to make your decisions for you. In the event you should lose your cognitive ability to make decisions, your power of attorney will pass that authority to the person you have selected. You can give different people different types of authority, such as giving healthcare authority to one person and financial authority to another.

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