Healthcare Power of Attorney / Living Will
What Sets Our Power of Attorney Apart?
An estate plan with a poorly drafted Power of Attorney for Health Care can cost you thousands of dollars in guardianship and conservatorship proceedings. The standard Power of Attorney for Health Care often burdens a loved one with deciding if you live or die and creates rifts with those who disagree. A well-conceived Power of Attorney for Health Care created by Idaho Law Group can solve these problems.
What is a Power of Attorney?
You can give an "Agent" the legal authority to act in your name to make decisions on your behalf. The document granting this authority is called a "Power of Attorney."
A Power of Attorney specifically created to appoint someone to make health care decisions for you is called a "Health Care Power of Attorney" which is also known as a "Health Care Directive" or "Advance Directive."
Powers of Attorney Are Divided Into Two Main Categories
Health Care Power of Attorney
Idaho law refers to a document granting authority to make health care decisions as a "Durable Power of Attorney for Health Care." (Idaho Code 39-4510) This document is sometimes called a "Health Care Directive" or "Advance Directive."
Financial Power of Attorney
Power of Attorney documents that are not for medical decisions are usually referred to as "Financial Power of Attorney." These cover all matters of life other than medical decisions.
What is a Living Will?
A Living Will is a written directive stating your intent regarding medical intervention when you are no longer able to communicate your wishes and it is not likely that you will recover.
Living Wills may refuse particular interventions and request particular interventions or they may refuse all medical interventions (while still allowing pain management).
A Living Will directive:
- Removes Emotional Burden from the shoulders of your trusted agent.
- States Your Intent Clearly
- Prevents Family Division over these decisions.
The Living Will directive may be a standalone document or these provisions can be drafted as part of the Power of Attorney for Health Care.
Powers of Attorney for Health Care and Living Wills
Due to illness or injury, each of us may end up in a situation where we are unable to make our own medical decisions.
Expensive Court Proceedings
If you become incompetent and you do not have a Power of Attorney for Health Care, family or friends cannot make medical decisions for you. A court of law must be engaged so a judge can appoint someone as your agent. This process is often expensive.
Delay in Authority
Seeking Court appointment of a Guardian and Conservator takes time. Until the appointment is made, Doctors will be left to make decisions on their own, regardless of what your family may tell them about your wishes.
Family Fights
When two or more family members disagree about your medical care and feel strongly about their positions, the family can be divided. A Power of Attorney for Health Care avoids fights. It identifies who you trust to make those decisions for you. This person is appointed as your agent.
Emotional Burden
The decision to let a loved one go (pull the plug) is an extremely difficult choice. There is often the hope that, just given a little more time, you might recover. A Living Will, stating your intent, removes that burden from your agent. It is no longer your agent's decision because it was previously made by you.
Potential Problems with Health Care Directives
A Living Will removes the decision of whether or not to terminate life support from your Health Care Agent. However, sometimes there are legitimate reasons to give your Agent the authority to override the Living Will.
Reasons to Override
- Time to get a second opinion – Your Health Care Agent may have legitimate reason to believe he or she should seek a second opinion.
- Time to gather relatives – Your Health Care Agent may want time to gather people to say their goodbyes.
- Time for hope – Your Health Care Agent may have reasons to believe you will recover.
Reason Not to Override
Choosing to add a provision allowing the Health Care agent to override the Living Will reduces the Living Will to a suggestion and returns all of the emotional burden and family problems the Living Will is designed to overcome.
Solution to the Dilemma
If you wish to have a Living Will, you may give your Health Care Agent authority to override it, but only for a specified time. You should provide enough time so your Health Care Agent may fulfill any reason to override.
To determine how long to authorize a Health Care Agent to override a Living Will, you should consider:
- Family Dynamics – How will family dynamics play into this decision?
- Gathering Family – How long will it take to gather family? Where are they? How quickly can they arrange to come?
- Second Opinion – What is the likelihood of needing a second opinion and how long will that take?
- Added Expense – What added expense is there likely to be for each day you are kept alive by invasive means?
What Does "Durable" Mean?
Almost all Powers of Attorney are "durable" Powers of Attorney. This simply means that the document has a provision that makes it remain effective after you are incapacitated and can no longer say whether you want it to be effective or not. Powers of Attorney are most often used because someone is incapacitated. Therefore, almost all Powers of Attorney are drafted as durable Powers of Attorney.
If I have a Trust, Do I Need a Power of Attorney?
Yes, you should have Health Care Power of Attorney in addition to your Trust. Your Trust controls assets, but the role of a Trustee has no authority over your medical decisions.
Case #1
Michael had been living with heart problems for years. His wife, Sarah, had been caring for him. When Michael had a major heart attack, the doctors were able to stabilize him, but his heart was severely damaged. He was not expected to recover.
Unfortunately, Michael's Power of Attorney for Health Care was a standard form. It gave Sarah the authority to make all health care decisions, including end-of-life decisions.
Michael's adult children disagreed with Sarah's decision to remove him from life support. The family was torn apart by the conflict. Had Michael's Power of Attorney for Health Care been more carefully drafted, the burden of making this decision could have been removed from Sarah and the family conflict could have been avoided.
Case #2
Robert was in a serious car accident. He was unconscious and unable to make his own health care decisions. His wife, Linda, wanted to make decisions on his behalf, but the hospital would not let her.
Robert and Linda had never done any estate planning. They assumed that because they were married, Linda would automatically be able to make decisions for Robert. Unfortunately, that is not how the law works in Idaho.
Linda had to go to Court to be appointed Robert's guardian. This took weeks and cost thousands of dollars. Had Robert simply signed a Power of Attorney for Health Care, this delay and expense could have been avoided.
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