MAKING A LIVING WILL

• One of the most trying times for any family is when a loved one is dying and the decision must be made about life support and death with dignity. The law gives us the right to state our wishes in advance through a document entitled Directive to Physicians, but more commonly known as a living will. In that document, if an individual is incapable of stating his or her wishes at the time such major life decisions must be made, the living will specifies these wishes.

• Your living will is only followed if you become unconscious or otherwise unable to make medical decisions. If you understand your treatment, it will be unnecessary for your health care providers to consult your living will; they will ask you instead. Also, a living will can be changed or revoked at any time.

• We can help you prepare a living will that includes the specific instructions you want. For example, you may want to state your preferences regarding particular treatment such as dialysis, chemotherapy, radiation, surgery and the use of respirators, feeding tubes or other methods of life support.

MEDICAL POWERS OF ATTORNEY

• This document gives the person you name as your agent the authority to make any and all health care decisions for you in accordance with your wishes, including your religious and moral beliefs, when you are no longer capable of making them yourself. Your agent's authority begins when your doctor certifies that you lack the capacity to make health care decisions. Even after you have signed this document, you have the right to make health care decisions for yourself as long as you are able to do so. Treatment cannot be given to you or stopped over your objection.

• Your agent is obligated to follow your instructions when making decisions on your behalf. Unless you state otherwise, your agent has the same authority to make decisions about your health care as you would have had. A physician must comply with your agent's instructions or allow you to be transferred to another physician.

• Because "health care" means any treatment, service, or procedure to maintain, diagnose, or treat your physical or mental condition, your agent has the power to make a broad range of health care decisions for you. Your agent may consent, refuse to consent, or withdraw consent to medical treatment and may make decisions about withdrawing or withholding life-sustaining treatment. Your agent may not consent to voluntary inpatient mental health services, convulsive treatment, psycho-surgery, or abortion.

FINANCIAL POWERS OF ATTORNEY

• A power of attorney is a document that authorizes one person, the agent, to act on behalf of another person, the principal. Also known as a General Power of Attorney, they are generally used for financial matters, (hence the more descriptive name used by our office to distinguish it from Medical Powers of Attorney). These Powers of Attorney can also be used to appoint someone else to handle the following kind of routine chores and decisions:

  • paying bills; selling property; investing money in stocks and savings accounts; handling checking and savings accounts; filing tax returns; collecting rents

• Most often they are made "durable," which simply means they are not made ineffective upon subsequent incapacity (exactly when you need it!). Regardless of durability, all powers of attorney terminate at your death (and that is when a will takes over).

• The powers granted to your agent can be broad or limited. You can give your agent complete authority to manage all your affairs and make all decisions for you, or you can limit your agent’s power. You retain the power to revoke your power of attorney at any time while you are competent. You can also discharge one agent and appoint another.

• A limited power of attorney is useful if you want to limit the powers assigned, such as for emergency medical decisions affecting a minor, or to sign a particular contract or real estate deal. Our highly developed documents include many powers not typically found in those from other law firms or the military, to include tax motivated gifting, handling probate matters, and even caring for pets.

• A durable power of attorney can be invaluable if you are unable to make decisions as a result of incompetence or unconsciousness. If you are facing a serious operation or suffering from an incapacitating illness, a durable power of attorney can be prepared to take effect as soon as you sign it, or your durable power of attorney can provide that it should become effective only when a doctor certifies that you have become incapacitated.

• Limited, or special powers of attorney can also be drafted to handle only certain affairs if you will be on an extended vacation or business trip. Examples include the sale of real estate or to consent to emergency medical care for a minor.

• Agents are required to act in your best interests, keep accurate records, and treat your property separately from their own.

• Your living will and powers of attorney should be kept in an easily accessible place where they can be located when needed, to include your medical records. You should also tell a trusted friend or family member where the signed documents are stored.

• You should plan ahead so that your needs and desires can be followed in the event of an incapacitating illness or injury. Our office can explain the benefits of advance planning to avoid guardianship should you become incapable of taking care of your personal affairs. If you wish to appoint an agent, we can prepare a power of attorney naming someone you trust to handle both your financial and medical affairs if you cannot. We can also prepare a living will or health care proxy that complies with your wishes as well as the detailed requirements of your situation.