Let us break away from medical issues for one article and discuss Durable Medical Power of Attorney. Going about our daily lives in today’s multi-tasking world, has left us with little time to think about many legal matters, which we believe we have already taken care of. For many families these discussions do not even take place and adult children think that Mom and Dad have taken care of it. And perhaps Mom and Dad did, the question is when and has the legal document/instrument kept up with our lives.
I know for me this realization came about as I was working in the Elder Care field and many times as I sat down to counsel with families, I would find the documents were put in place several years ago and the decision maker was a reciprocal affair. Please don’t misunderstand, in good times this is the way it should be, by that I mean exactly what the elders wanted should be observed. However, the population, medical and legal worlds have changed a lot recently. The shift seemed to begin about ten or so years ago.
The conundrum we seem to be left with is this: either Mom or Dad has been diagnosed with a life threatening disease or worse a disease which is associated with a dementia. Person ‘A’ is the one suffering the disease process and Person ‘B’ is involved in a car accident or has a heart attack. With the reciprocal agreement that leaves Person ‘A’ to make a decision that they do not understand. When this occurs one of two scenarios will occur; 1) the decision making party (Person ‘A’) will make a decision at the direction of whoever is asking a close-ended question or; 2) the decision making party (Person ‘A’) will simply close up and not talk or acknowledge anyone in the room. So where does this leave Person ‘B’ and what about Medical Providers. Both are really in a very difficult position at this point, Person ‘B’ has signed a legal instrument and believes that their best interests are being met (the truth is they may not even remember how long ago the discussion or authorization was made). And the Medical Providers have taken an oath “Do No Harm” and therefore will use every means possible to prolong the life of Person ‘B’ until they will call for the Ethics Committee and house attorney to make a decision (We in the family must remember there are avenues to stop life sustaining treatment, however, no one can bring a person back to life.). In this day of lawsuits and media attention, the medical establishment will (or can) transfer power to the Superior Courts in the residential area.
Please read this last paragraph over and be sure you have totally understood the dire consequences which can and do happen all the time. The person being ask for the decision will even if they make the decision extremely stressed and probably require hospitalization either then or within one week. (Remember this person (Person ‘A’) is ill to start with and now the person (Person “B’) they have come to rely on the most is out of the picture, even for only a short time.
Next let’s look at the document itself. We have numerous different official documents to serve the same purpose. Some of the DPOAs are very generic and simple say I (name) to be my DPOA. And this leaves the person holding the instrument to make all decisions no matter what. (This is great if the person you selected has just been told the important news of all the ground breaking medical procedures and you both agree on the action plan.) Some are very specific and this gives the person holding the instrument no doubt what the answer is to each medical procedure. (That’s great as long as no new medical treatments have come through and your decision just turned them down.) And then there are the ones which give some direction, but also permit the person holding the instrument to make the decision. (Great as long as this person is still involved, lives in your area and is mentally competent and physically able to make the decisions, necessary.) I am sure we can all see the glaring holes in these situations.
The important part of this article is three fold. 1. Get one. 2. Take the time to really understand what you are giving permission for, and stay current. 3. Make sure that the important people know about this instrument. (I am sure you have noticed that as I wrote this article I called the DPOA several different names. The reason for this is that depending on where you are, and how your legal system is set-up, it is called different names. This would also apply if you are traveling and have the need to use this document.)
- Get one. Most people go to their attorney to have this document drawn up. However, with money tight and the internet so accessible, some are choosing to get a template off the internet. Truly, I don’t know which is better; I would probably go with the attorney, just for safety sake. When I need to use this, it is not the time to discuss the validity of the document.
- This should not be a quickly taken care of chore. Take time to read and think about each section of this document. Every person has and holds their own values and standards make sure yours are very clear to all who read this document. And then place it with your yearly tax worksheet. Each year you should take some time to go over exactly what it says, (not what you remember it says) but really what does it say. If there are changes for any reason, perhaps your designee becomes ill or you move to another state or there is a change in the relationship with the designee, you have the safety net to make the necessary alterations.
- Once you have accomplished this and are satisfied your wishes will be carried out, provide a copy to your Primary Care Physician and anyone serving in a medical or legal capacity for you. Yes, certainly with the internet providing to your Primary Care Physician should take care of all medical providers either human or institutions, however, I always like to cover my bases. And legal providers should be covered by your personal attorney, unless you used the internet, the attorney passed on ahead of you, and there are a host of other reasons.
You may think this is overkill to go through all these steps, however, remember what this document is there for. To speak for you when for whatever reason you can’t. And that brings us to the last of this article, select your designee with care and a clear understanding of the circumstances. Many times a spouse is not the best person for this honor, look at each possible person you may want to consider through eyes of:
Can this person follow my desires and belief? Not letting his/her values and conscious come between what I want for me.
Will this person be able to think clearly if there is a catastropic event which catapults them into the decision making seat? In other words can they think and act confidently under pressure.
Am I able to entrust my life to this person?
There will be times when a person will feel there is not a friend, relative or other, who can act in our best wishes. A point in case, for religious reasons or lack of intellectual ability, at this cross road your best bet for a designee for DPOA could be an attorney. The charge for this variable depending on the state and attorney, and again I would just remind you of what we are discussing and how important money will be at a time like this for you.
If you are able to answer ‘Yes’ to each of these questions, then you have certainly found the best person for the job. And stay on top of any and all changes necessary by going over your DPOA each year at Tax Time.