This past week I spent time with friends and family out of town. The importance of health care directives came up on two different occasions during this vacation. I used these instances to preach to family and friends the importance of planning ahead, specifically the use of health care powers of attorney and advance directives (also referred to as living wills). Although I’ve changed the names of the people involved, I’m going to take this opportunity to do a little preaching on this subject to you as well.
In the first scenario described to me, Susan, the friend of a family member, is incapacitated and in the hospital. Susan is married and has children from a prior marriage, as does Mark, her husband. She has both a valid Health Care Power of Attorney and valid Living Will. When Susan was first admitted to the hospital, there was a lot of confusion as to who could make health care decisions for Susan. This was due to the fact that two different Health Care Power of Attorney documents were submitted to the hospital - one named Susan’s child, but her most recent Health Care Power of Attorney named Mark as her agent.
Because the kids want to ensure their mom’s best interests are being taken care of, they went so far as to hire an attorney to explain to them who is in control of their mom’s health care decisions and why. They even sought counsel on what would be necessary to remove Mark as agent for their mom. These kids are now furious with their mom (even though she is incapacitated) because she never told her children that she executed new documents or that Mark would be in charge of making health care decisions. The kids have undergone unnecessary legal expense and have injured their relationship with their stepdad all because Susan did not disclose the revision of her health care documents to her children.
I was able to explain to my family how both the expense and fractured relationships could have been avoided had Susan simply shared information with her kids. If she had held a family meeting and shared the fact that she had updated her health care documents to designate Mark as the medical decision maker, the kids would not have needed to hire a lawyer, and they would have had a chance to talk about mom’s wishes in the event of incapacity.
The second scenario reveals how much easier it is on family when everyone knows who is in charge of health care decisions. Peggy, a friend of another family member, had a stroke and was admitted to the hospital. Peggy had all the necessary health care documents in place, and family members all had copies of the executed documents. All of her children were aware Peggy had named Richard, her oldest child, as his mother’s agent for health care decisions.
Although the decisions all rested with Richard according to the legal documents, he chose to discuss options with his family. The family was all aware that only he had the right to make decisions but appreciated the opportunity to voice their opinions. In this family, even though only one of the children made the decisions, the relationships between the siblings were maintained intact. The kids knew ahead of time who would be in charge and there was no fighting. The only thing which could have been better is had Peggy discussed her thoughts on her medical care with her family. Richard did his best at determining what his mother would want, but it would have relieved some stress had he been given some parameters on what Peggy’s health care philosophy was.
After both of these discussions, I reminded my family that incapacity can happen to anyone regardless of age. We talked about what happens when there is no plan in place and the resulting required use of the court system. It was a great reminder to all of them how important estate planning is, as well as how important it is to share information regarding an existing estate plan.
Contributed by MH Phoenix and Scottsdale Attorney and Partner Katherine A. O'Connell
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