2005 Lane Reports

Wishful Thinking: Do I Really Need a Power of Attorney?

Friday, April 1, 2005

The Need Is Here, The Time Is Now
The recent federal and state court battles concerning the controversial, gut-wrenching case of Terri Schiavo have many people thinking about the need for a living will and other advance directives. Yet some people are still wondering if they really need a power of attorney. Can't they just tell their spouse and family members what their wishes are? Do they really need to see an attorney?

Quite simply, the answer is "yes." Every adult over the age of 18 years, including college students, needs to have a living will and/or other advance directives executed in order to have confidence that their personal health care wishes will be followed in the event of physical or mental disability.

But do you need a health care power of attorney "now"? Technically, no. Right now, I can presume that, as you are reading this, you have the capacity to make your own health care and financial decisions. However, as none of us knows neither the day nor the hour when we might become incapacitated, disability planning is something that must be done in advance. When you really need a living will or advance directive, it is already too late. So, as a practical matter, you really do need such advance directives "now."

A Three Step Process
A three-step process is generally recommended when planning for disability: (1) consultation, (2) documentation, and (3) communication.

First, you should consult with an attorney who specializes in estate and disability planning. A knowledgeable attorney can assure you that the documents you sign are current and compliant with federal and state laws, draft your documents so that your wishes are clearly stated, suggest alternatives for you to carefully consider, and ensure that your documents are properly executed with the formalities that are required by law and with appropriate impartial witnesses. Many people find that it is challenging, given the ever-changing regulatory environment, to ensure not only that their advance directives are compliant with federal and state laws but also that their wishes are clearly documented so that they will be followed as intended. People with second residences out-of-state or students who attend college out-of-state should be particularly concerned, as state laws do vary throughout the country. Federal laws are also a concern for many people. For example, the Health Insurance Portability and Accountability Act (HIPAA) may, unbeknownst to you, limit the powers you intend to convey to another. Additionally, military personnel should be aware that certain federal laws may provide additional benefits to their advance directives, particularly if there is a conflict with the laws of the jurisdiction in which they are currently residing.

What types of advance directives are available and which do you need? Those answers can vary from state to state and also according to your circumstances. In Illinois, there are three forms of advance health care directives:

1. Living will
2. Power of attorney for health care
3. Declaration for mental health treatment

The first advance directive is a living will. A living will is helpful but limited in scope and authority - it is a declaration to the attending physician not to use life-sustaining treatment if there is an incurable or irreversible disease and death is imminent. It may sometimes provide similar direction if there is a state of permanent unconsciousness or "persistent vegetative" condition; however, the precise meanings of those terms can be debated, particularly in light of the Terri Schiavo cases. A living will does not apply to any other type of health care treatment or decision.

The second advance directive is a power of attorney for health care. A power of attorney for health care broadly covers any health care decisions that may need to be made and specifically designates another individual and successor individuals as a person's agent to make such health care decisions. Despite the broad grant of power permissible, a power of attorney for health care can be tailored to a person's specific desires and beliefs, grant decision-making authority in a broader or narrower manner, authorize organ donation, and state your wishes regarding the disposition of remains upon death. A carefully drafted power of attorney for health care in conjunction with good communication with your loved ones and designated agents should minimize or eliminate intra-family disputes about your care in the event you become disabled.

A third advance health care directive permissible in Illinois is a declaration for mental health treatment. This document allows an individual to provide specific direction for their desired mental health treatment, although such matters can also be included within a power of attorney for health care. A declaration for mental health treatment is more frequently executed by individuals who either are currently undergoing mental health treatment or who may likely undergo such treatment in the foreseeable future. This document is effective for three years after it is signed. In contrast, other advance directives remain valid throughout one's lifetime but can also be revoked at any time.

Even after consultation with an estate planning attorney and executing the documents that are right for you, you still should communicate your health care wishes to your family, friends and loved ones periodically in order to avoid any confusion about your intentions about your health care. Although talking about such private health care matters may be difficult at first, it is truly one of the best things you can do after executing your documents, as First Lady Laura Bush and others have echoed recently in response to the Schiavo proceedings. Doing so provides additional guidance now to the agent or agents that you have designated to make health care decisions on your behalf, and, if later called upon to make such decisions, your discussions with them will provide comfort and reassurance during a time of high emotion. The Terri Schiavo case ultimately was brought to the United States Supreme Court because there was an intra- family dispute over the extent of life-sustaining care that Mrs. Schiavo herself would have wanted. Although such a prolonged dispute doesn't happen every day over health care decisions to be made for a loved one, it underscores that regularly communicating your health care wishes to your family and friends, in conjunction with formally documenting those wishes, can avoid the emotional and financial costs that may otherwise result from not planning for your potential disability.

It is recommended that individuals review their advance directives on a regular and periodic basis, generally every two or three years. Although two or three years may seem like a short time, it is not uncommon for something to change during that period that would impact your advance directives or other disability and estate planning. For example, your health care views may have changed, federal or state laws may have changed, one or more of your health care agents may have passed on or moved away, or your agents' circumstances may have changed, prompting you to re-order or replace one or more of your agents in order to ensure that your wishes will be followed. In conjunction with reviewing your advance directives every two or three years, it is also advisable to review your estate planning documents, such as a will or trust, at such intervals as well.

Postponing the process of formally documenting your health care wishes (e.g. making no decision at this time) truly is making a decision: you are essentially deciding that, as of today, you want your family, friends and loved ones to make difficult decisions with little or no guidance and to potentially fight publicly over your health care in court. No one wants that to happen. To think that such things could never happen to you or me is simply wishful thinking.

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The Law Offices of Marc J. Lane, P.C., frequently advises clients on estate and disability planning matters. We would welcome the opportunity to assist you when you are ready to implement or update your planning.

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The Lane Report is a publication of The Law Offices of Marc J. Lane, a Professional Corporation. We attempt to highlight and discuss areas of general interest that may result in planning opportunities. Nothing contained in The Lane Report should be construed as legal advice or a legal opinion. Consultation with a professional is recommended before implementing any of the ideas discussed herein. Copyright © 2007 by The Law Offices of Marc J. Lane, A Professional Corporation. Reproduction, in whole or in part, is forbidden without prior written permission.

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