Most people think of an estate plan as a legal solution for financial matters. However, health care considerations are incredibly important to any estate plan. Health care considerations will help you and your loved ones decide what to do when you may be incapacitated by illness or age, but not deceased. Life spans have increased due to modern medicine and general hygiene improvements. Consequently, health care and incapacity planning are more important than ever for a comprehensive estate plan.
Don’t Risk “Living Probate”
Using a revocable living trust in your estate plan allows you to avoid the potentially expensive and time-consuming probate process. A revocable living trust can also protect you and your loved ones from a “living probate”. There are generally two types of living probate: guardianship and conservatorship.
Guardianship proceeding: The legal process in which a court considers a petition that has been filed and potentially appoints a guardian to care after someone’s person.
Conservatorship proceeding: The legal process by which a court considers a petition that has been filed and potentially appoints a conservator to look after and manage a person’s financial matters.
Here is an example of a conservatorship proceeding.
John and Jane Smith are an elderly couple. John has been diagnosed with Alzheimer’s disease. Jane has found it increasingly difficult to manage his finances. Seeing the difficult situation, their son Michael initiates a conservatorship proceeding to appoint himself as conservator to manage John’s affairs. Michael files a petition with the local court. The court reviews the petition and determines that John is indeed incapacitated and in need of a conservator. The court also reviews Michael’s qualifications and background and finds him to be a suitable candidate for the role. At a hearing, Jane does not object to the court naming Michael as conservator. The court considers this evidence and decides to grant the conservatorship. The court appoints Michael as John’s conservator and is responsible for managing his finances.
As this example shows, even in a “best case scenario,” the living probate process can invade family privacy. Court proceedings are often open to public record and scrutiny. Additionally, family members must make important decisions under a period of stress. Once the court approves a conservator, it is necessary to make continual filings for the use of assets. These proceedings can be emotionally charged. Someone in the beginning or middle stages of memory/cognitive disability, may dispute the allegation of incapacity. Their resistance to loss of control over their affairs can create a tense dynamic in the family.
How a Disability Panel Works
A revocable living trust allows grantors to include incapacity provisions, including provisions for a disability panel. This serves as an alternative to potentially contentious conservatorship proceedings. When the disability panel determines incapacity, it can transfer the ability to make decisions for yourself to someone else. At this point, the predetermined successor trustee will take over the administration of the revocable living trust until the settlor has either regained capacity or has died.
The first benefit of a disability panel is that it is proactive. You, your attorney, and your loved ones can calmly decide on incapacity criteria and who will make decisions for you in the future. Another benefit of a disability panel is privacy. No court is involved, and therefore it is not a public matter. A third benefit is that the decision will be up to loved and trusted people. Typically this is a majority decision of the panel members, and so the decision of incapacity is likely less contentious. Of course, you always can reserve the right to dispute a decision of the disability panel and request a conservatorship hearing. However, this situation is less likely because a plan is already in place and those you have involved trusted individuals to make decisions for you.
General Durable Power of Attorney
Incapacity provisions can also let the disability panel activate a general durable power of attorney. The person in this role can take care of matters not governed by the trust and the trustee. For example, this person may distribute assets not titled to the trust, sign on the principal’s behalf when dealing with the IRS or US Postal Service, access safe deposit boxes, file lawsuits on the principal’s behalf, etc.
What about Living Wills?
A living will, also known as an advance healthcare directive, is a legal document that allows you to specify your medical treatment preferences if you become terminally ill and are unable to communicate or make decisions for yourself. The living will outlines your wishes regarding end-of-life medical care, including whether or not you want to be kept alive through artificial or extraordinary means.
Living wills gained national attention following the Terri Schiavo case in Florida that spanned approximately 7 years from 1998 to 2005. The case disputed who had authority to make end-of-life decisions for Terri, who had been in an apparently vegetative state for the past 15 years. After a very long and painful legal process, the courts ultimately ordered hospital staff to withdraw Terri’s feeding tube. She died after 14 days without nutrition or hydration.
Subsequently, many estate planning attorneys have encouraged living wills in order to avoid another such legal fight. But is simply having a living will on file with medical providers the only or even best way?
There are many legal, ethical, and moral issues involved in the Terri Schiavo case. The obvious legal questions are, was it legally permissible to remove Terri’s feeding tube. If so, who had the legal authority to do it? The ethical questions center on what the medical staff was allowed to do based on the ethical standards of the governing/regulating institutions. Finally, the moral question is primarily whether anyone has the right to remove a feeding tube from someone who cannot feed him or herself. A living will gives the person creating it the decision but does not solve the contentious aspects of “right-to-die.” It also creates a possible legal obligation for doctors to withhold nutrition and hydration.
Why You Need a Healthcare Power of Attorney
End-of-life situations can become very complicated and difficult. Making a one-time decision potentially a long time in advance rarely considers all the possible medical situations. When you appoint a health care agent under a durable power of attorney for health care, you have a person who can advocate on your behalf when you are unable to effectively communicate with doctors. This arrangement is flexible and better able to deal with the nuances of end-of-life care.
By making use of a durable power of attorney for health care, you appoint someone you know and trust (and to whom you have made known your end-of-life wishes) to make medical decisions for you when you are unable to. This health care agent is then empowered to speak with medical staff, review your medical charts and condition, and make an informed decision regarding treatment, according to your end-of-life wishes.
Even if you wish to more expressly make your wishes known in a living will, it is still a good idea to also create a durable power of attorney for health care in order to appoint a health care agent who can evaluate circumstances and make appropriate medical decisions for you. This is better than relying on medical staff to divine your wishes from check marks on a legal form.
There are two final considerations on the durable power of attorney for health care. First, it is best to name the health care agents individually in the order in which you would like them to serve. It is important to have one person with the ability to decide when called upon, rather than to have multiple persons serving concurrently. A disagreement between two or more people may cause delays. This could lead to an inability for medical staff to provide medical care on a timely basis. Second, if possible, name initial health care agent who lives relatively close to you. It is much easier and faster for you to have a local advocate in an emergency.
Stand Alone HIPAA Release
Durable powers of attorney for health care generally contain provisions that authorize the release of protected health information to the health care agents named therein. However, it is a good idea to also have a stand-alone medical release of authorization. This document enables loved ones or other trusted persons to have access to your medical records and condition. Sometimes you just want your family members to know what’s going on. Or you may wish for your health care agent to be able to consult with others before making a decision. As a patient, you may be best represented when you give trusted individuals access to your health information.
In conclusion, estate planning should not simply be limited to your estate or assets. It should also empower others to take care of you with as little disruption or confusion as possible. A disability panel within your revocable living trust can protect you from going through “living probate.” A durable power of attorney for health care (even if in conjunction with a living will) can ensure that your wishes concerning health care and end-of-life treatment are carried out. A stand-alone medical release of information will keep those you love and trust “in the know” about your medical condition and health matters. It will also give medical staff a deeper bench of informed persons to consult on your behalf.