Caregiving Blog: Estate Planning and The Responsibility of Being Named Medical Power of Attorney
A friend or aging family member completed their estate planning documents. You agreed to be named medical power of attorney. Do you understand the magnitude and extent of the responsibility of the role of medical power of attorney? Are you prepared to show up at the hospital for health emergencies at midnight? Will you have the guts to “pull the plug” to end life? Will you be ready to heatedly debate with children and other family members about wishes communicated they disagree about a treatment plan.
Estate planning documents of medical power of attorney, financial power of attorney, living will, will, and trust are important to ensure there is a person to advocate for us when our physical or mental health fails. Accepting the role of medical power of attorney, or any fiduciary responsibility, should not be taken lightly. Never allow your name to be added to a document without a thorough discussion and documentation of health history.
The other consideration is age. What if you are the same age as the person for whom you agreed to act. What happens when you are both 90 years old and have health problems? How well will you be able to act if you are more physically or mentally disabled that the person for whom you agreed to be medical power of attorney? If you are a married couple, acting for each other, have you named successors in your documents?
Estate planning, elder law, and probate attorneys completing estate planning documents need individuals to name for these appointments. Some attorneys have the breadth of experience and life experience to know what questions to ask. Other attorneys, new to estate planning, may not have sufficient personal experience to advise clients. Some older adults are hesitant to provide background information about the person named. Others do not want to name children because of known family conflict. Others feel uncomfortable providing health or financial information to persons they do not fully trust.
As a professional fiduciary who has served in the roles of medical power of attorney, financial power of attorney, personal representative of the estate, and trustee, I have had many sleepless nights. Turning off life support for a client, even though the right thing to do, haunted me for months. Making medical decisions that conflicted with physician recommendations— because I knew my client better than the physician—required extreme confidence gained from my years as a caregiving advocate.
Benefits of a Team Approach to Estate Planning
The routine decision when completing an estate plan is to appoint a family member or friend for legal responsibilities. Appointing family members or friends may not always be the best decision. Individuals who wish to thoroughly plan their estates are best served by taking a team approach that includes an attorney, a financial or wealth planner, and a caregiving expert.
I understand. The idea of working with multiple people for a single project may seem like too much effort. You are developing a plan for your life and your care. Take the time. Make the effort. At the time care is needed or you are unable to act for yourself, you will have peace of mind knowing that you will receive care in the manner you directed. No one, not even adult children who may be interested in their inheritance, will be able to challenge choices and decisions.
Estate planning, elder law, and probate attorneys are experts at drafting documents. Financial and wealth planners are experts at investing and all of the related areas. Few financial and wealth planners understand divesting funds to pay for costs of care.
The gap in life and estate planning is the caregiving expert who has direct experience as a medical power of attorney, financial power of attorney, personal representative, or trustee. Individuals with this level of expertise, like myself are rare due to the special expertise required for this business niche. Today I serve as a consultant to attorneys and financial planners working with clients to develop estate plans. I educate family caregivers about the realities of care, caregiving stress, and advocating for healthcare needs including Alzheimer’s Disease.
Creating documents is the first step to finalizing an estate plan. Understanding, problem solving, and planning for “what might happen” is rarely discussed. Implementing the documents at the time of need may pose serious issues. Not having sufficient funds to pay for care and planning for the realities of Medicaid may be an unpleasant surprise for financial planning clients. Attending a court hearing to have a power of attorney document contested may be an unpleasant surprise for the individual named in the document and for the estate planning attorney.
My 20+ years of expertise has given me the ability to know the events that happens in simple and complicated care situations. I have advocated and testified in court. I have stood up for the wishes and care of my clients against the wishes of unreasonable family members and healthcare staff who became involved because they crossed personal boundaries. And even years after the death of my clients, I have testified about wishes made in wills.
Aging and becoming frail occurs to all of us. The unexpected will occur. Perfect family relationships fracture. Conflict occurs. Family member and friends agreeing to act in legal roles change their minds or become to ill to act. Taking the responsibility of a legal appointment is important to the person you will be assisting. Identifying and appointing a professional fiduciary to act in these roles is becoming more common.
Medical Power of Attorney Duty to Advocate for Medical Care
Physicians who told me my 95-year-old clients were disposable were quickly replaced. I know few people who would want to be told that they’ve lived a long life, aren’t worthy of a simple treatment, and should just die. Providers in the healthcare industry are insensitive. Dignity for older adults is not supported. Other healthcare professionals are simply untrained. Sensitivity is lacking in the healthcare community about the extreme situations in which family caregivers, who are unprepared and overwhelmed, find themselves.
Unsuspecting family caregivers and friends willingly place themselves in legal roles by agreeing to act as medical power of attorney. Many never think that a situation arises where they will have to act as the responsible party. Family members and friends who have never been a caregiver are suddenly thrown into a whirlwind of decision making. They receive calls from healthcare providers to make decisions for family or friends for which they have little or no medical expertise. What if the wrong decision is made? Will a life be lost?
Medical Power of Attorney: The Responsibility to Act in Unexpected Situations
I received a call over a 4th of July weekend that one of my clients was in the emergency room. My name was found on a card in her wallet. She had been intubated and placed on mechanical ventilation because she could not breathe on her own. A feeding tube had been placed to provide nutrition. An unexpected event occurred that resulted in the situation.
I rushed to the hospital to visit my client who was lying in a hospital bed attached to all types of equipment. Knowing her wishes, because these had been previously discussed, allowed me to direct the medical staff. If I had not had copies of the medical power of attorney and living will to present to the hospital in my possession, they would not have granted my decision-making authority. If I had not had a thorough medical history, list of surgeries, list of allergies, prior physician information and treatments, medications and other information I would not have been able to provide the hospital with sufficient information to support care.
I knew that my client had a cat. I had information regarding the location of her house key. I had phone numbers for neighbors I could call to care for the cat and bring in the mail daily while she was in the hospital. I knew where checkbooks, bank accounts, and other information were located if bills were to be paid. Because of my professional experience as a fiduciary, I had all of the necessary information and was able to step in to act to manage all aspects of my client’s life until she was able to recover and return home.
Your Name is On the Document: What Information Do You Have?
If you are medical power of attorney, what type of information or access to personal health, financial, and related information do you have? Are you confident that if you had to show up at the hospital in 30 minutes and make a medical decision or provide medical history you would be effective? Do you live in the same city as the individual for whom you agreed to act?
Is there sufficient information in the living will to state what types of treatment are or are not wanted? Does this information accommodate for medical errors that occur? Have you discussed intubation, mechanical ventilation, feeding tubes, and other types of extensive care with the individual? Is there a MOST form or DNR? Do the wishes in these documents correspond with the living will? Are you aware of family members who might disagree with the wishes listed in these documents?
Medical Power of Attorney: Is It Time to Change Course?
If you are the legal appointee in the role of medical power of attorney, financial power of attorney, personal representative of the estate or trustee, do you have information immediately available if you were called to act? If not, now is the time to have a serious discussion with the friend or family member for whom you were appointed. Knowing more, you may decide not to act in this role. Estate documents may have to be updated. Better now to understand the responsibility of the role you accepted than to change your mind at the time of need.
And if you are the person initiating the documents, choose a primary appointee and then two successors. This ensures that your documents will be valid if any one of the appointees decides not to act, had retired, moved out of state, or passed away. A provision allowing appointment of a successor should be included as well as confirming that appointed individuals will be the recommended guardian or conservator if this becomes necessary. As life becomes more complicated, we now own “digital assets”, meaning having Amazon and I-Tunes accounts, information in estate planning documents should include provisions for all possibilities.
For free information about caregiving and all related aspects, subscribe to The Caring Generation Library®. My book, The Caregiving Trap: Solutions for Life’s Unexpected Situations® offers real life situations, insights, and tips for caregivers.
Pamela D. Wilson, MS, BS/BA, CG, CSA, a National Certified Guardian and Certified Senior Advisor, is a caregiving and elder care expert, advocate, and speaker. Pamela offers family caregivers programming and support to navigate the challenges of providing, navigating, and planning for care. She guides professionals practicing in estate planning, elder and probate law, and financial planning to create plans to address unexpected concerns identified in her past role as a professional fiduciary. Healthcare professionals are supported by Pamela’s expertise to increase responsiveness and sensitivity to the extensive range of care challenges faced by care recipients and caregivers.