Case emphasizes need for end-of-life discussions

Have you ever wondered whether it's worthwhile to have a Health Care Directive (also called a health care proxy, personal directive, power of attorney for personal care) made up to express your wishes? If you've ever considered it unimportant,click here to have a look at this article from www.advocatedaily.com. Right now, the Supreme Court of Canada is deciding an essential issue for all of us. They are looking whether doctors have to listen to the person who was appointed under a health care directive when the doctors think it's time to pull the plug on a person in a vegetative state.

The case centres around Mr. Hassan Rasouli. Mr. Rasouli's doctors believe that he is in a vegetative state and will never recover higher functioning. His wife was named by Mr. Rasouli in a health care directive and opposed the doctors' suggestion that life support be discontinued. Had she given her consent, life support would have been withdrawn, allowing Mr. Rasouli to pass away naturally.

The court will decide whether in a case like this, the doctors need the consent of a substitute decision maker to give treatment that they see as ineffective or inapproprite. In case you are getting the impression that the doctors are fighting to end this man's life, please understand that the doctors need and want this clarification by our  higher court as much as Mr. Rasouli's family - and the families of anyone who is on life support - want it. Everyone needs to know where this issue stands.

Each of us should have this document prepared appointing a trusted loved one or friend, and discuss our wishes with that person.

Fee for acting under a Living Will? And can I ignore funeral instructions?

The role of the executor is challenging, there is no question about that. I know that many of you reading this blog are executors looking for practical information about how to deal with the estate you're working on. The following question (which is really two questions) came in from a reader in exactly that situation, so I'm sharing it with you in case you're in a similar spot.

Here's the question:

"Can an executor charge fees before the person passes away if that person is in charge of the living will. Also does the executor have to follow the will to the tee for the funeral arrangements?"

 

First of all, a person whose authority comes from a will can't do anything with that will, including taking a fee, while the testator (the person whose will it is) is alive.

 

When you talk about the Living Will, I am going to assume that you're actually talking about a type of health care directive or advance directive. These directives usually include the kind of end-of-life instructions you see in a Living Will, but they also do much more. They usually appoint someone to make decisions, and as you say you are "in charge of" the document, this sounds more like what you are dealing with.

 

The law in Canada generally does not allow a person acting under a health care directive to charge a fee. You can, however, usually recover reasonable expenses. Please understand that this has absolutely nothing to do with the will. You have to follow the law as it applies to the health care directive, which varies from province to province.

 

As for your second question, the executor doesn't have to follow the will to a tee regarding the funeral. In fact, legally the executor can totally ignore what the will says about the funeral, because the funeral wishes in a will are a wish only. They are not legally binding. The law says that if the executor has the legal responsibility to dispose of the body, then he or she must have the legal right to decide the best way to do that.

 

Please keep in mind the emotional fall-out that can happen if you decide not to follow the will. It may upset people, to put it mildly. Consider what damage will be done to family harmony, and think about how you will deal with this. I'm not saying that you can't do the funeral the way you think best; I'm saying you may have to gently explain to family members why you made a different decision.

 

I'm glad you decided to ask for input before taking these steps. Sometimes just asking helps avoid real problems.

Death by forgery: case shows how not to conduct advance care planning

This is one of those completely odd news stories that just make me shake my head. According to a story from the American Academy of Estate Planning Attorneys, a Missouri woman is being accused of 1^st degree murder and forgery. The murder weapon: her father’s power of attorney, allegedly forged, naming herself as the agent. The actual murder: directing that her father’s life-sustaining medical treatment be discontinued. The accused, Susan Elizabeth (“Liz”) Van Note has pleaded not guilty to the charges. I'm very glad that my own law practice has had very few of this kind of client!

To read the rest of this story, and yes it gets weirder, click here.

Can my health care PoA be "durable"?

Here's another good reader question. This one is asking about whether health care directives can be "durable" powers of attorney. I find that people get confused about how the concept of durability affects a document, so I'd like to answer the question here for everyone to read. Here's the question:

"Can any type of power of attorney document be durable? Like can I have a Durable Heath Care Power of Attorney Form?"

There are two basic kinds of documents that name someone to act for another person when that person loses capacity to make his or her own decisions. One is a document that gives someone - called the attorney - the authority to make decisions about money and property. Most of the time that document is simply called a Power of Attorney, though in some places it's also called Power of Attorney for Property.

The other kind of document is one that gives someone the authority to act under health, medical or person decisions. This goes by many names, including Personal Directive, Health Care Proxy, Advance Health Care Directive and Power of Attorney for Health Care. This is the type that the reader's question addresses.

The basic reason for making either of these documents is to have someone of your choice lined up to make decisions if you can't do that any more due to loss of mental capacity. The word "durable", also called "enduring" or "continuing", means that the document endures through your loss of capacity, should it happen. That's the whole point of it - to have something that covers you in that situation.

In other words, yes, these documents can and should be "durable".

A person who acts under a standard health care document ONLY does so when the person can't speak for himself or herself, therefore that document must be durable. If the document wasn't "durable" and collapsed when you lost capacity, it would be little more than a waste of paper.

Do Not Resuscitate

This brief but thought-provoking article from Contemporary Retirement Coaching raises an important issue: too many people fail to leave a health directive document that lets others know of their wishes in an end-of-life situation. Do you have a medical directive in place? Click here to read the article.

Five reasons to have a health care directive

Much of estate planning focuses on wills, as well it should, but planning for incapacity is equally as important. Of the documents that I consider the "basics" of an estate plan, the health care directive is the one that most people seem to believe is optional. In my view, there are many good reasons to put a health care directive in place, and here are my top five:

1.  When you complete a health care directive, you choose who will be your decision-maker and spokesperson. If you don't do this document and you lose capacity, you may have no say in who is named by the court to represent you.

2.  In many jurisdictions, you can choose the level of help you want. This may range from supported decision-making for a specific type of decision (such as selection of housing) through to complete legal representation. By choosing the level of assistance you believe you need, you may head off well-meaning but intrusive help that you don't particularly welcome.

3.  Health care directives are too often simply a cookie-cutter document, but by using an estate-planning specialist to prepare yours, you can include instructions that are important to you and helpful to your family. For instance, you could express wishes about living somewhere you may worship at the church of your choice, about eating Kosher, about keeping your pet with you, about refusing blood transfusions, or about which of your children you'd like to live with.

4.  Making and documenting your decisions ahead of need is a gift to your family members. Never underestimate the value to your spouse, children and extended family in preventing distress, guilt and disputes.

5.  Having this document prepared ahead of need while you're healthy is a heck of a lot cheaper and easier than having someone in your family go to court to be appointed as your health care guardian.

When you have your will prepared, or next time you have your will updated, you should have a health care directive (aka health care proxy, personal directive, or advance directive) prepared as well.

Failure to plan for incapacity may lead to more intrusive help later

Nobody really wants to envision their future selves as incapacitated to the point of not being able to manage their own money and health care. Unfortunately, refusing to think about it doesn't prevent it. We don't know in advance whether will we suffer from an injury or health issue that will cause a loss of mental capacity, but it's essential that we have a plan in place to deal with it if it happens.

The usual documents put into place to deal with future incapacity are an Enduring (or Continuing or Durable, depending on where you live) Power of Attorney and a Personal Directive (or Health Care Directive, Advance Directive or Health Care Proxy). When you put these documents into place, you choose who will represent you when you lose capacity. You can set guidelines and limits on what they can do. You can express your wishes about how you want to live.

Having these documents in place greatly decreases the chance that anyone will have to apply to the courts to be appointed as a guardian or trustee (or committee) for you. Instead of having a court-appointed person who has absolute control over every aspect of your health care with no input from you, you can name someone you trust and give them some guidelines.

Instead of having a court-appointed trustee who is not of your choosing and who can sell or re-arrange your financial matters as he or she thinks best, you can give some instructions on what to do with specific assets or business matters. You can build in terms that allow other family members to be informed of what is happening or build in added accountability for your representative. You can retain more dignity and independence.

The bottom line is that with these documents in place, you retain some choice and control. Without them, other people might one day have to choose for you, and impose their wishes and ideas on you whether you like it or not.

Financially, setting up documents in advance is better too. Each of the documents here will only cost a couple of hundred dollars. Applying to the courts to become a trustee, with all of the paperwork and time involved, is much more expensive (and that comes out of your pocket, not the pocket of the person who is applying).

Planning for incapacity is just as important as planning for your eventual death. Make an Enduring Power of Attorney and Personal Directive a part of your estate planning.

Opposite of DNR

Not long ago I received a question on this blog that asked me how to word a personal directive so that "the opposite of DNR" was achieved. The person didn't want "some idiot pulling the plug" and wanted to know how to word the document so that "the only reason I should be dead is old age". I've heard similar comments a number of times, so I believe this question represents the thoughts of many people.

I don't believe that there is any generic wording that suits everyone, and I am not prepared to suggest any wording of any document to someone when I don't know all of the relevant facts. However, I do want to talk about the general issues that arise from this person's question. I believe that many people don't really understand how the Personal Directive (aka heath care directive, advance directive, power of attorney for health) works.

The first thing that strikes me is that the person asking me this question shares a misconception with a number of other people I've met. That is, that signing a directive somehow gives medical professionals permission to prematurely and frivolously end someone's life. That is simply not the case,. The permission given in the directive says only that if the person is in a vegetatative state and no matter what is done, the person will never recover, then it is alright to discontinue artificial support. Nowhere are you giving permission for someone to kill you should you inadvertently fall asleep and not be able to watch your back. I doubt there are many practicing doctors out there who can't tell a functioning person from one in a  vegetative state. Personal Directives usually also contain specific instructions that direct that nutrition, hydration and pain-killers continued to be administered.

The doctors I've talked to about this tell me that if they believe that life support should be discontinued, they talk to the family and set a date for it. There is nothing hasty or spontaneous about it and there is plenty of time for the family to talk it over with each other and with the doctors.

Many people express to me a fear that the plug will be pulled too soon, and they will lose the chance to recover. As has been pointed out to me many times during these discussions, people do recover from comas. The problem here is that a person for whom life support is going to be discontinued is not in a coma. A person on artificial life support has no brain function at all. The only thing keeping them alive is a machine that pumps their heart or their lungs. What are the odds of recovery?

Also remember that the person who has the authority to speak for you on health decisions is not the doctor. Only the person you chose and named in your document may communicate your written instructions about how to handle the situation. So to have someone mistakenly try to remove life support, not only would the doctor have to be "some idiot", your chosen representative would also have to be one.

I'm glad the issue was raised, as this is one of the concerns bothering people who are trying to do their estate plans and trying to understand how the Personal directive document works.

Why "do not resuscitate" might not be the right words

As part of comprehensive estate planning, most people will have a Personal Directive (also called Health Care Directive, Advance Directive, or Health Care Proxy, depending on where you live) prepared for them. A Personal Directive appoints someone to be your decision-maker and spokesperson on health, medical and personal decisions if you should lose your ability to make those decisions for yourself.

When I am meeting with clients about these documents, they often tell me that they want a document that says "DNR" or "Do Not Resuscitate". Most of the time, people are quite confident that this is exactly what they want, but it almost never is.

What they want to express is that if they are in a vegetative state and if higher functioning cannot ever be restored no matter what is done, they don't want to be kept alive artificially.

Unfortunately, that's not what DNR means.

What if the person who wouldn't want to be kept alive artificially if in a vegetative state is not in that state but is healthy. What if he or she has, say, a heart attack or stroke. He or she would most likely want to be resuscitated as the incident has nothing to do with a vegetative state. He or she could be expected to recover from a heart attack or stroke, if not completely then certainly well enough to carry on a happy life for many years. But not if their document says DNR.

DNR is a blanket instruction that would apply to all situations, not just the vegetative state. DNR means not to revive the person at all. Ever. When this is explained to people who have just told me they want DNR in their documents, they are sometimes quite shocked that they almost instructed the exact opposite of what they want.

If you have documents in place right now that include a DNR instruction, think about what that could mean for you, and consider whether it's what you really intend. I've spoken to a number of doctors who see these DNR documents in hospitals who say they agree with me that the people signing them did so without having any idea of the consequences.

When you're not able to speak for yourself, words matter. Make sure yours are the right ones. It's worth the time and money to get your document done properly so that there are no unintended outcomes.