We have spent a considerable amount of time discussing wills and bequests.
However, there are other documents that are also critically important. The first is called a medical proxy.
A medical proxy, otherwise known as a health care proxy is a document that allows you to choose someone to make medical decisions for you in the event you cannot make them for yourself. If you are unconscious or otherwise physically or mentally incapacitated and are unable to make medical decisions for yourself, your medical proxy would be consulted by your healthcare providers and s/he would be empowered to make such decisions for you by virtue of the medical proxy you executed. The medical proxy you sign will give your designee access to your medical records, allow them to speak with your physicians, and empower them to admit you a hospital or long term care facility, amongst other things.
It is important to name not only the primary medical proxy but also a backup or successor proxy in case the primary person is unavailable for any reason. Your physicians may be unable to reach the primary proxy for any number of reasons.
Additionally, since spouses often name each other as medical proxy, what would happen if both spouses were incapacitated in the same tragic accident? Backup planning is, thus, very important.
Another critical document is a living will. A living will, otherwise known as an advanced medical directive is a document in which you express your end of life decisions.
For example, if you are unconscious or in a coma and your physicians opine that you will not regain consciousness, how would you want the doctors to act with regard to your care? Should they continue life saving measures? Should you be ventilated? Should they provide tube feeding to keep you alive? These are extremely personal questions and would be very difficult for loved ones to make on your behalf. The living will allows you to make these decisions for yourself. A living will that clearly defines what you do want and what you do not want not only lifts the burden from your loved ones but insures that your final directives are followed.
Some people are concerned with the fact that they cannot know now what decision they would make at a later date without knowing all the facts that may exist at the time. If you have a similar concern you may wish to give your medical proxy the right to override your advanced directives and supplant their own judgment for yours. Others fear that if they leave these end of life decisions to a loved one, the loved one will not have the courage to make the difficult decision to cease treatment.
Alternatively, if they do have the courage to make such a decision the fear is they may forever live with the guilt of having made that decision. If that is the case for you as well, it may behoove you to make the final decisions yourself in your living will and refrain from giving an override power to your loved one.
You may be familiar with the tragic story from the news about a woman named Terri Schiavo who was a woman in an irreversible persistent vegetative state. Terri’s husband and legal guardian elected to remove her feeding tube arguing that she would not have wanted prolonged artificial life support without the prospect of any meaningful recovery. Terri’s parents, however, challenged their daughter’s medical diagnosis and further disputed her husband assertions. They argued in favor of continued artificial nutrition and hydration.
The dispute became highly publicized and involved state and federal politicians all the way up to then President George W. Bush.
Ultimately the case involved 14 appeals, numerous petitions, motions and hearings, five federal district court lawsuits, four denials of certiorari from the United States Supreme Court, and a great deal of pro-life and right-to-die political activism. All of this caused a seven year delay before Terri’s feeding tube was ultimately removed.
Sadly, all of this could have been avoided if Terri had executed a simple living will expressing her own desires.
Another form of living will or advanced medical directive takes the form of documents known in some jurisdictions as POLST forms (Provider Orders for Life-Sustaining Treatment) and in others as MOLST forms (Medical Orders for Life-Sustaining Treatment) or other similar acronyms.
These forms are often used for patients who are already at the end of their lives and are expected to die within a year or less. The forms are signed by a medical professional and the patient and constitute a medical order. The forms are immediately recognizable and can be used by first responders and physicians alike.
We invite you to contact us to learn more about estate planning and the services we offer.