Probate (17)
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Planning for end of life decision-making is something most want to avoid, and yet critical for the well-being of family. Intellectually, all know they will face the end of life and associated decisions, yet planning can make it too much of a reality. I hope to explain the importance of some end of life decisions and the way to ensure the courts will recognize and respect the decisions. I will also argue why these decisions should be put in place now, as well as the care of family involved with the decisions and associated document.
In South Carolina, a Healthcare Power of Attorney (HPOA) is one of the best ways to make enforceable end of life decisions now which can protect families from potential financial ruin (and emotional turmoil). With the HPOA, a person can give a loved one powers over decision-making in the event the person is in a medical state in which they cannot communicate and (to a reasonable degree of medical certainty) the person will not recover. This medical situation can be the result of an accident, or some kind of terminal illness in advanced stages. The key is that the person is being kept alive by artificial life sustainment (respirator, etc.) of forced hydration/nutrition (forced feeding).
The HPOA allows the person giving authority different decisions relevant to the end of life. First, the decision of whether or not they wish to donate organs after death. Next, the HPOA offers three choices with artificial life sustaining efforts (generally, this deals with pulling the plug on a respirator): 1. They can give the choice to the person they have given power of attorney. 2. They can demand that life sustaining efforts will end. 3. They can demand that life sustainment will continue indefinitely. Next, the HPOA offers the same three choices in the event of forced hydration/nutrition (forced feeding).
If clients ask for my thoughts, I generally recommend clients consider the option of giving the decisions for life sustainment and forced feeding to their power of attorney. The person with power of attorney will know all the surrounding factors to make that decision, including discussions with the person who gave power of attorney before losing the ability to communicate. That aside, this is a personal decision the person must make about the end of their life. The good of the HPOA is it prevents the person from being kept on life support against what would be their will, and potentially destroying the family's financial security in the process.
The HPOA is something people should consider when in the process of estate planning with documents like wills and Durable Power of Attorney (look to my previous articles about this Power of Attorney). These documents will display love toward family if and when they must be used. Not spending the time and effort to create the documents, and putting family in a much worse position in the event they are needed but not available, can be telling. Catastrophic personal injury accidents can occur at any time, so waiting for old age is not wise. Most general practice lawyers or Estate lawyers can draft and execute a HPOA at a relatively low cost. The time is now to get it done.
Published in: Probate
Planning for end of life decision-making is something most want to avoid, and yet critical for the well-being of family. Intellectually, all know they will face the end of life and associated decisions, yet planning can make it too much of a reality. I hope to explain the importance of some end of life decisions and the way to ensure the courts will recognize and respect the decisions. I will also argue why these decisions should be put in place now, as well as the care of family involved with the decisions and associated document.
In South Carolina, a Healthcare Power of Attorney (HPOA) is one of the best ways to make enforceable end of life decisions now which can protect families from potential financial ruin (and emotional turmoil). With the HPOA, a person can give a loved one powers over decision-making in the event the person is in a medical state in which they cannot communicate and (to a reasonable degree of medical certainty) the person will not recover. This medical situation can be the result of an accident, or some kind of terminal illness in advanced stages. The key is that the person is being kept alive by artificial life sustainment (respirator, etc.) of forced hydration/nutrition (forced feeding).
The HPOA allows the person giving authority different decisions relevant to the end of life. First, the decision of whether or not they wish to donate organs after death. Next, the HPOA offers three choices with artificial life sustaining efforts (generally, this deals with pulling the plug on a respirator): 1. They can give the choice to the person they have given power of attorney. 2. They can demand that life sustaining efforts will end. 3. They can demand that life sustainment will continue indefinitely. Next, the HPOA offers the same three choices in the event of forced hydration/nutrition (forced feeding).
If clients ask for my thoughts, I generally recommend clients consider option of giving the decisions for life sustainment and forced feeding to their power of attorney. The person with power of attorney will know all the surrounding factors to make that decision, including discussions with the person who gave power of attorney before losing the ability to communicate. That aside, this is a personal decision the person must make about the end of their life. The good of the HPOA is it prevents the person from being kept on life support against what would be their will, and potentially destroying the family's financial security in the process.
The HPOA is something people should consider when in the process of estate planning with documents like wills and Durable Power of Attorney (look to my previous articles about this Power of Attorney). These documents will display love toward family if and when they must be used. Not spending the time and effort to create the documents, and putting family in a much worse position in the event they are needed but not available, can be telling. Catastrophic personal injury accidents can occur any time, so waiting for old age is not wise. Most general practice lawyers or Estate lawyers can draft and execute a HPOA at a relatively low cost. The time is now to get it done.
Published in: Probate
The legal ability to give power of attorney to another can be extremely helpful in many cases, but also dangerous if the wrong person is given that power. There are nuances to different types and levels of power of attorney, and those nuances help prevent a catastrophic mistake. Power of attorney can be limited to a specific act or scope of acts, or it can deliver all financial powers. A health care power of attorney can provide health care powers for the situation in which one is not able to communicate health care decisions. Let's go over the considerations for each.
First, A general power of attorney allows another person complete power to make all financial and administrative decisions and actions. For example, someone with general power of attorney can go to a bank and withdraw all money from one's account. The law allows for powers of attorney to be "durable", and therefore a durable general power of attorney will continue being mental incapacity to death. This means that whoever has general powers can sign over real estate and clean out bank accounts among other powers. This is a power that should only be granted to the most trusted individual, and that person should be provided detailed guidance for using that power. It can be revoked any time, and should be revoked in the event of any question of trust that might arise.
Next, the power of attorney can be limited in scope to a specific action, for example signing a real estate contract and/or deed. This is a limited power of attorney, and only allows for what was specified by the person giving power of attorney. This is a wise option to choose in preventing abuse. The downside is that once the limited action is over, the person can do nothing more without another power attorney. The power can be limited in scope, allowing for continuing powers within the same area, like handling a certain bank account. In that event, it can also be durable within that scope.
A Healthcare power of attorney allows powers related to "pulling the plug" on life support or ending forced feeding when, to a reasonable degree of medical certainty, the person will not survive without the extraordinary life sustainment and will not regain consciousness to make their own decision. This is different from other powers of attorney, limited or general, and one that also requires a great deal of trust. The power of attorney give three options: 1. Allowing the person being given the powers to make the decision about life sustainment. 2. Ending life sustainment. 3. Continuing life sustainment. Most will choose to give power for the other person to make the decision. I recommend considering that option, as the person will have all the facts to make an informed decision based on the specific circumstances.
When I was deploying to Afghanistan, we advised newly married soldiers to think long and hard before giving general power of attorney. There were horror stories of those who were "cleaned out" while deployed away, facing bankruptcy with their divorce upon return. Those kinds of stories abound, and give pause to giving general power to all but the most proven trustworthy individuals. In the event of a personal injury situation and claim against another party for causing the injury, lawyers may request limited power of attorney for certain actions related to the claims or lawsuits. I believe it is wise to consider providing that limited power of attorney, particularly if the lawyer is separated by long distance and signing documents may require lengthy mail delays. Speak to your lawyer about this question. Always remain wise and cautious about powers of attorney.
Bill Connor,
The Bill Connor Law Firm
Published in: Probate
