One of the scariest scenarios we face is the prospect of no longer being able to make our own decisions and to think for ourselves. Often this is a process of gradual decline, and either we, or those close to us, can see the changes and understand what is happening. If you have not done advanced planning, that’s a good time to get moving. There are some fairly straightforward documents that you can draft and execute which will allow those you love and trust to make important decisions.
1. Health Care Proxy: this document names the person who can make medical decisions for you in the event that you are unable to make them yourself. In Massachusetts, only one person can be named at a time, but you can have successor agents in case the first person is not available. I recommend that everyone have a Health Care Proxy (including young adults so that doctors must listen to their parents, or to the person they have designated).
If you do not have a Health Care Proxy and there is a disagreement about your care, it is possible that a Guardian will have to be appointed by the probate court. This is a process that can be time consuming, complex, and expensive. In the end, the court decides who will make decisions about your care, not you.
2. Durable Power of Attorney: this document names a person who can sign documents on your behalf, and who can make financial and administrative decisions on your behalf. This can be effective now, or it can come into effect upon your incapacity.
Like a Health Care Proxy, if you do not have a Durable Power of Attorney, and become incompetent, a family member or caregiver will have to go to court to be named to represent you. This person is called a Conservator, and this process, like naming a Guardian, requires court involvement and much expense. It also means that the court makes the final decision about the person best suited to manage your affairs. Judges are wise and thoughtful, but they don’t know you or your family members the way that you do – don’t you think you’ll make a better decision?
Everyone over the age of 18 should have a health care proxy. Period. Everyone. That means you, too. A health care proxy appoints the person of your choice to make health care decisions for you if you are unable to do so. If your college student has a car accident and is taken to the local hospital, you want to be called, consulted, and listened to. A health care proxy can assist in this process. (Have him or her keep a copy in the glove box). A beloved family member is fading from a variety of age related illnesses, a health care proxy will help her get (or not get) the type of treatment SHE would choose. Will your frail parent want to be resuscitated if it will result in pain, broken ribs, and the extension of their terminal illness? Are you a “keep on trying no matter what!” type of person? Make that clear to your health care proxy.
A health care proxy in Massachusetts does not replace a living will. It appoints one person who can direct the medical decisions of the person who has made the document (principal). The best way to assure that your wishes are honored is to speak with the person you have chosen, and have some honest conversations about your wishes, well before the need arises. What makes a life worth living, rather than simply existing in pain or incapacity? This is a personal viewpoint, and one that it’s hard to know about someone else. Two tools I use with my clients are the “What If Workbook” and “Five Wishes”. Each lays out some of the questions and decisions we face with end of life medical care.
One final point. If you want your children or spouse or best friend to be able to speak with your medical provider, they should be named in a HIPPA release form. Our privacy laws can be a great help in protecting confidentiality, but can frustrate our families attempts to understand our condition and prognosis. A health care provider may not speak to you even if you are a parent, spouse, or child without legal permission to do so.
I know that lawyers hate to admit that there is any such thing as a basic, vanilla estate plan. The truth is, there is such a plan and some people have a need for one. Equally true, however, is that you should probably have some good advice before you decide that you are one of those people. When I talk about “basic”, I’m talking about the following items (this is somewhat specific to Massachusetts residents). In later posts, I’ll describe each in some detail and give tips for getting organized to create one.
— Trust (maybe)
— Health Care Proxy
— Power of Attorney
— Emergency Guardianship Proxy (if you have minor children)
— A complete review beneficiary forms
1. What is a health care proxy?
A health care proxy names the person that you want to make your medical decisions if you become incapacitated.
2. Is a health care proxy the same as a living will?
No. A living will is a document that gives instructions about your medical wishes. In Massachusetts, the health care proxy has this power, and while it it easier for everyone if your wishes have been communicated in writing, the health care proxy is not bound by your living will.
3. Can I name both my children as proxies?
No, you can only have one health care proxy at a time. You may name successors if the first person becomes unavailable to serve as your proxy, but only ONE person can act as your agent at one time.
4. When does a health care proxy go into effect?
Usually your doctor “activates” your health care proxy by determining that you are unable to make your own decisions. This can happen, for example, to an elderly person who is suffering from dementia, or a young person who is unconscious after an accident or other illness.
5. Can I revoke my health care proxy?
Yes, you can revoke your health care proxy at any time. In addition, even if a doctor has determined that you are incompetent, if you don’t agree with your proxy’s decisions, YOUR decisions and wishes must be respected unless a court has determined that you are incompetent.