A living will is an optional estate planning document.  Most people want a living will because they don’t want to be hooked up to machines if they are in an irreversible coma or persistent vegetative state.  It’s not fun to think about, but your action now can prevent a lot of suffering and keep peace in your family later.  Here are the living will facts.

• A living will is typically part of a comprehensive estate plan.
• It’s an advanced medical directive, meaning that you make a decision now about a potential future situation.
• A living will is informed consent.  In fact, it’s clear and convincing evidence of your intent.
• Terri Schiavo didn’t have her wishes in writing.  She did NOT have a living will.  Because her parents didn’t want life support disconnected she was kept alive, while brain dead, for 15 years.
• Your health care agent or family members cannot override your living will, even if they disagree with your decision.
• Let your loved ones know that you have a living will and where you keep it (and where you keep your other important documents).
• Consider the use of an online document storage system such as Docubank (www.docubank.com) so that your living will and other health care documents are always available.
• In addition to a living will, you also need a health care power of attorney and a HIPAA release.
• The health care power of attorney authorizes your chosen agent to make health care decisions on your behalf if you cannot give informed consent.
• The HIPAA release authorizes medical personnel to communicate with your agent.  For example, they may discuss whether you are in an irreversible coma or persistent vegetative state, making your living will effective.
• Advanced medical directives are informed consent and cannot be overridden by your agent.

If you don’t have a living will in place, consult with a qualified estate planning attorney.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

If your doctors determine that you are in an irreversible coma or persistent vegetative state, and if you don’t want to be kept alive with medical heroics such as life support, you should sign a living will.  The U.S. Supreme Court has ruled that a living will is clear and convincing evidence of an individual’s intent to withhold consent for heroic medical treatment, including life support machines.  Without a living will, your loved ones will have to make the decision regarding life support.  That may lead to a family battle and you not getting what you want.

Terri Schiavo:  15 Years on Life Support

Terri Schiavo was a young woman living in Florida with her husband, Michael, when she collapsed in their home.  Michael called 911 and Terri was rushed to the hospital; she was hooked up to life support machines.  Like Nancy Cruzan (discussed in part one of this article), Terri did not have a living will, but she had expressed that she didn’t want to be hooked up to machines to artificially extend her life.

The attending physicians made it clear that Terri was in a persistent vegetative state and would not improve.  Her husband sought to have life support removed.  Terri’s parents disagreed.

Years of court battles ensued.  You likely saw news coverage.

Terri was finally removed from life support 15 years after she collapsed in her home.  She died shortly thereafter.

You Need a Living Will

If you don’t want medical heroics at the very end of life, when there is no coming back, execute a living will.  Chat with the adults in your family.  Let your loved ones know how you feel, andlet them know that you’ve signed a living will.

If either you or your loved ones don’t have living wills, consult a qualified estate planning attorney.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

If your doctors determine that you are in an irreversible coma or persistent vegetative state, and if you don’t want to be kept alive with medical heroics such as life support, you should sign a living will.  The U.S. Supreme Court has ruled that a living will is clear and convincing evidence of an individual’s intent to withhold consent for heroic medical treatment, including life support machines.  Without a living will, your loved ones will have to make the decision regarding life support.  That may lead to a family battle and you not getting what you want.

Nancy Cruzan

The two most well known life support/right to die cases are those of Nancy Cruzan and Terri Schiavo.  After being injured in a car accident, Nancy Cruzan was kept alive with artificial hydration and nutrition for nearly eight years.

After the first four years and the realization that Nancy was never going to get better, her parents and husband wanted to have the life support removed, but the state of Missouri disagreed.  The case went on for years, and made it all the way to the Supreme Court.

The Court ruled that a living will is clear and convincing evidence of the desire to not be kept alive with life support machines if an individual is in a persistent vegetative state.  Nancy didn’t have a living will, therefore, the state, at that time, was permitted to keep her on life support since there was no clear and convincing evidence presented.

After the Court’s ruling, Nancy’s parents and husband submitted additional evidence which finally constituted “clear and convincing” evidence of her desire, and she was removed from life support.  She died 19 days later – 8 years after her car accident.

If you don’t have an up-to-date living will, consult with a qualified estate planning attorney so that you never share the same fate as Nancy Cruzan.  Please read part 2 of this article, wherein we discuss Terri Schiavo’s life support/right to die case.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

Power of attorney grants the power to a second party, often your child, to make legal and financial decisions for you. It is usually a back up a plan, in case an unexpected accident happens and you are unable to keep your affairs in order.  But what if you are uncomfortable handing over all rights to a child now, under a power of attorney, while you are still capable of managing your own affairs?

Implementing a springing power of attorney could be your solution.

A springing power is a power of attorney that only becomes effective if you (the grantor or person signing the power) become disabled. This approach addresses the exact concern raised. You do not provide powers to your kid as agent until you really need the help, i.e. when you cannot handle matters on your own.

While this sounds seductively good and simple, as the saying goes, the devil is in the details. If you cannot trust your kid while you are alive, well and astute to keep an eye on the kid, why and how can you trust the kid to do right when you’re disabled? Furthermore, the entire concept of a springing power is often questionable. How do you define “disabled” such that the power of attorney springs into effect? There is no simple definition.

What if you have a temporary illness? If you recover, how do you get the financial reins back from junior? All these issues can be dealt with, but they add complexity. Also, do not forget about HIPAA complications. This law imposes strict limitations on the disclosure of medical information. To prove disability, you need to address these
requirements.  Once you get through all that, your kid will have to convince the bank, or other person to accept the power. This is not always so simple.

So, while a springing power can address a common parental worry, it also creates a host of issues. A power effective immediately might mitigate some of the concerns. A funded revocable living trust can provide an even more comprehensive alternative. The bottom line is, even a power of attorney, which too many people dismiss as “simple” and “standard” process, is fraught with issues that you should only ignore at
your own peril.

For answers to your estate planning questions, contact the Deborah Sexton Law Office at (479) 443-0062 or www.arkansas-estateplanning.com.  Deb offers free half-hour consultations.

This information is brought to you by Martin M. Shenkman, CPA, PFS, MBA, JD, AEP® through the NAEPC Foundation. 

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

When most folks think about estate planning, they picture a huge house on lots of land.  There are multiple bank accounts, investment accounts, and a really nice swimming pool.  The hot cars line the drive and someone named James answers the door.

This picture, although lovely, has little to do with estate planning.  Estate planning isn’t just about the money.  One of the most important parts of estate planning is the health care documents.

After all, if you are dying in the hospital, it doesn’t matter if you have a pool and a butler named James or not.  If you don’t want to be hooked up to life support machines like Terri Schiavo for fifteen years, you need health care documents.

A living will gives instruction to medical personnel regarding your end of life medical treatment.  If you choose to have a living will, you say in advance, “I don’t want medical heroics.  I don’t want machines if I am at the very end of life and I am in an irreversible coma or permanent vegetative state.”

Within a living will, you are making health care decisions in advance.  Hence, a living will is called an “advanced health care directive.”

You also need a health care power of attorney wherein you appoint an agent to make health care decisions on your behalf if you are unable to make those decisions yourself.  A health care agent can NOT override your living will.

You also absolutely need a HIPAA release which honors federal privacy laws.  The HIPAA release permits your health care agent to access your medical records and communicate with medical personnel.

The organ donation authorization should also be considered when executing health care documents.  By donating organs when you no longer need them, you can save up to 8 lives and make many more lives more comfortable.

Everyone needs health care documents.  Consult with a qualified estate planning attorney.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

When sitting down to create your estate plan, you may be thinking about utilizing a healthcare power of attorney so that you’re protected in case of an emergency?  Are you unsure of all of the uses of the healthcare power of attorney?

Take a look at some of the information below to learn more about how a healthcare power of attorney can help protect you for when the unexpected happens.  If you have any questions about creating a healthcare power of attorney, meet with an estate planning attorney.

What is a healthcare power of attorney?

This is a legal document that allows you to appoint a healthcare power of attorney agent who will be responsible for making medical decisions as well ensuring your proper medical care.

If you’re ever incapacitated or terminally ill, you will want to make sure that someone is there to help you with your healthcare decisions.  Your agent has a variety of responsibilities and can make a difference.

How can a healthcare power of attorney protect me?

If you are ever unable to make your own medical decisions, you need someone who can help you.  You are protected by making sure that your best interests are considered at all times.

It can also help protect your and your family from a legal battle.  If you don’t appoint an agent, your family will need to get court approval in order to help you with your healthcare decisions.  This can be an extremely costly and lengthy process.

What can my agent do?

Your agent will have a number of responsibilities.  He or she will be able to help in the following ways:

• Make important medical decisions
• Fire or hire medical professionals responsible for your care
• Decide on the best medical facility for your care
• Communicate with medical professionals on a regular basis
• Have access to your medical records and document

If you have any questions about implementing a healthcare power of attorney in your estate plan, consult with a qualified estate planning attorney.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

Many people don’t understand the importance of a living will.  If you want to make sure that your medical wishes are respected, you need to outline your preferences in your living will.  We’ve taken the time to answer some of your questions regarding the use of living wills.  If you have additional questions, or if you’d like to create this important estate planning document, meet with an estate planning attorney.

What is a living will?

A living will is an important estate planning document that allows you to outline your wishes regarding certain end of life medical treatments and procedures.  Many people use this document to express their wishes regarding life support.  If you don’t wish to remain on life support, it’s important to include your thoughts in your living will.

Is a living will all that I need?

A living will is important to have, but it does not help to handle all of your medical needs.  It’s also beneficial to have a healthcare power of attorney in place.  This document lets you choose an agent who will be responsible for helping to make important medical decisions.  This person will be in charge of making careful decisions that have your best interest in mind.

Why should I create a living will?

A living will has many benefits.  A living will not only allows you to have some control of your medical decisions, even when you’re physically unable to make choices.  It can also help to take away some of the burden that your family may face.  It can be extremely difficult for a loved one to “pull the plug.”

A living will can also help to keep your personal matters out of court.  If family members disagree about your medical treatment, they may go to court to get approval to make decisions as in the Terri Schiavo case.  Terri was kept alive while brain dead for 15 years.

If you have any additional questions about the need for a living will, consult with a qualified estate planning attorney.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

Many people like to live in the present, and don’t take the time to include emergency planning in their lives.  If you’re thinking about starting your estate planning, now is the time to think about emergency planning.  You never know when the unexpected will happen, and these events could leave you helpless if you’ve not taken the time to plan correctly.

Take a look at some of the information below, to learn more.  If you have additional questions, meet with an estate planning attorney.

• Who will help you handle your finances if you’re ever unable to?
• Do you have certain medical wishes that you want to be respected?
• Would you want to remain on life support in order to survive even if you are in an irreversible coma?
• How will you make medical decisions if you’re terminally ill or disabled?

The above questions are some estate planning documents that you should consider.  Take a look at some of the estate planning documents below, so that you know what to include in your estate planning.

Living will

This estate planning document will allow you to outline your wishes for end of life treatment.  This may also include your wishes regarding the use of life support.  If you want to have a say in important health matters, you need this document.

Healthcare power of attorney

With this estate planning document, you will be able to appoint a healthcare agent who will help to make your medical decisions for you if you’re ever unable to. This agent will be responsible for following the wishes that you outline in your living will.  It’s important to choose a trustworthy, reliable, and loving person.  This person should be able to talk about medical conditions and feel comfortable talking with medical professionals.

Financial power of attorney

If you ever become disabled or seriously ill, you will need someone to handle your financial affairs.  Even though you’re sick or disabled, you will still have bills that need to be paid.  Choosing an agent will allow you to ensure that all of your affairs are handled.  You should select someone who is responsible, organized, and great with money.

If you have additional questions about including emergency planning in your estate planning, consult with a qualified estate planning attorney.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

Have you taken the time to outline your wishes regarding organ donation?  If you have yet to do so, now is the perfect time.  The month of April is “National Donate Life Month.”  Created in 2003, this “holiday” focuses on educating others about the need for organ donors.

If you want to make an impact in the lives of others, you may want to consider becoming an organ donor.  With the help of an advanced healthcare directive you can outline your medical wishes for the future, including your organ donation wishes.

What options do I have when deciding to become an organ donor?

 You are in complete control of your organ donation wishes.

If you want, you may choose to donate certain organs and tissue.  If you wish, you are also able to donate your entire body to medical science. (Or, anywhere in between.)

As an organ donor, you can save up to 8 lives.  Many people wait years for organs that eventually save their life!  Or, they can’t wait, and die.

If organ donation is something that interests you, speak with your estate planning attorney.

What can an advanced healthcare directive allow me to do?

• You are able to express your wishes about medical procedures and treatment options.
• You are also able to decide whether you wish to remain on life support if you become seriously ill.
• You can appoint someone who will be responsible for making sure that your medical wishes are followed.  This person is not able to make decisions that go against your wishes.
• You can decide if you want to be an organ donor.  As an organ donor, you can save the lives of others.  All of your organ donation preferences can be outlined in your advanced healthcare directive.

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

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

The living will and medical power of attorney have similarities, but are not the same.  Both legal documents are part of an estate plan.  Most people find it comforting to have both the living will and medical power of attorney in place.

Part of estate planning is planning for a time when you cannot make decisions for yourself; this includes health care decisions.  The living will documents you making a specific health care decision ahead of time.  The medical power of attorney documents your selection of an agent to make health care decisions on your behalf.

The Living Will

A living will is a legal document that authorizes medical measures that may hasten your death but keep you comfortable.  It also authorizes the withholding of medical measures that would serve to artificially extend your life.  It may be helpful to think of a living will as preventing heroic measures such as being hooked up to machines, while brain dead, for 17 years (i.e. Terry Schiavo.)

A living will is only effective if you are at the very end of life.  It is not effective if you are in good health and have a health issue or suffer injury.  Most living wills dictate that heroics may not be used if you are in an irreversible coma, vegetative state, or otherwise terminal and at the very end of life. 

A living will represents your medical decision made, during a time when you were competent to make the decision, which is only effective at a later time.  Your agent under a medical power of attorney cannot override your living will.

The Medical Power of Attorney

The medical power of attorney is similar to a financial durable power of attorney (sometimes called a general durable power of attorney), except is effective for health care decisions only, not financial decisions other than that the authorization of medical care that costs money. 

In a medical power of attorney, you name an agent to make health care decisions when you can no longer make those decisions.  While it is common to name your spouse or children, it is wise to select an agent who is comfortable with medical terminology and dealing with doctors. 

If you have questions regarding why you need a living will and medical power of attorney, consult with a qualified estate planning attorney.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.