The following article was written by Cheryl A. Calloway, ESQ. It is offered for informational purposes only and not for the purpose of providing legal advice.
PREPARING FOR THE UNEXPECTED
CHERYL A. CALLOWAY, ESQ.
Jesus says in The King James Version (1611) of the Bible, in Matthew 24:36: “But of that day and hour knoweth no man, no, not the angels of heaven, but my Father only.” In this and the preceding and following verses, Jesus is speaking of death and the need to prepare for death. But we also know not the day nor the hour when that stroke or heart attack will occur, you break your leg, you are hit by a bus, you fall down the stairs, the aneurysm you didn’t know about ruptures, a blood clot enters your heart or lung, surgical complications set in, disease and illness and complications occur, your significant other or spouse is unable to do the things he or she could do before, early onset dementia is diagnosed – you get the idea.
However, since we do not know about and cannot predict the occurrence or non-occurrence of these and other unexpected events, we need to prepare for them in advance. There are two documents everyone needs to have regardless of age, gender, marital status, or income: A Durable Power of Attorney for Finances and a Durable Power of Attorney for Healthcare.
DURABLE POWER OF ATTORNEY FOR FINANCES
A Durable Power of Attorney for Finances allows you to establish, while you are still able to do so (i.e.,. when you are not deemed incapacitated or incompetent and thus, legally unable to do so), who will take care of your financial affairs if you are not able to. It is critical that you consider carefully who you want to have this responsibility. In addition, you should choose a second person to serve in case your first choice, for any reason, is unable to serve in this capacity.
The level of authority you give to this person is up to you. The most comprehensive Powers give the person control of every aspect of your financial life – from accepting your paychecks, pension checks, or social security checks and paying your bills to selling your personal and real property and managing your investments. However, you can limit the authority the person has to only a few items. You should speak with the significant people in your life, including your attorney and financial advisor to get the information you need so that you can make an informed decision about the scope of the Power and who should be entrusted with the Power.
Another issue worthy of serious consideration is when the Power is effective. Some people make the Power effective upon signing; others make the Power effective upon the completion of some procedures once there is a “triggering event”. In the first circumstance, once the Power is signed and notarized, the person designated to implement the Power (the Agent) has full authority under the Power. This is one reason it is so important to choose a person you trust and whom you believe will act as you would act or act in your best interest. In most cases, the Agent will not and should not act unless specifically requested to do so by the person who established the Power or a “triggering event” occurs which requires the Agent to act. In the second situation, the Agent cannot act under the Power until there is a “triggering event” and the procedures established are completed. Usually the situation is that the Power cannot become effective until the person who established the Power becomes incapacitated to the extent that he or she cannot manage their financial affairs. The “triggering event” could be surgery, where the Power would be effective only until the person recovers. The “triggering event” could be dementia or a coma or mental illness or some other reason why the person cannot manage his or her financial affairs for the rest of their lives. In these types of situations, generally a finding by two doctors, one of which must be the person’s primary care doctor and the other a mental health professional, usually a psychologist or psychiatrist, or a judge or court official must certify that the person is incapacitated and unable to manage his or her financial affairs.
There are pros and cons to both approaches and the following are only a few:
|Ready to be used whenever the need arises||Could be used by the Agent when the person who established the Power doesn’t want it used|
|“TRIGGERING EVENT”||Doctor determination must be made before the Power can be used.||Can delay vital or important or time sensitive activities to the detriment of the person who established the Power while waiting for the doctor certifications|
This is why it is so important for you to consult with family and professionals in deciding which option is best for you.
DURABLE POWER OF ATTORNEY FOR HEALTH CARE
The Durable Power of Attorney for Healthcare is a document in which you provide direction and instructions to family, friends and medical professionals about what you want to happen in certain medical situations. Before and after preparing such a document, you should talk to your family and friends about what you think you might want, remembering that it is impossible to foresee every situation and that you might feel differently when the time comes.
The following are examples of significant subjects typically addressed in a Durable Power of Attorney for Healthcare:
- If your heart stops beating do you want to be resuscitated? [Things to consider – it might mean breaking your ribs; depending upon the amount of time that elapses, you could suffer brain damage which might affect your quality of life; medical science has improved the process so that the incidences of recovery are good in many cases]
- If you are unconscious do you want food and liquids administered to you? [Things to consider – this may mean putting a tub down your nose and throat for a short period or placing a peg through the abdominal wall into your stomach for longer periods; when your body is preparing for transition, it doesn’t really need nutrition]
- Do you want transfusions of blood products [Things to consider – if you are preparing for elective surgery, you may be able to save some of your own blood for use if needed; generally, the blood supply is quite safe, but it is still possible to get some diseases and illnesses from blood transfusions; if there is time, you can solicit blood donations from family and friends]
- Do you want to donate any organs or body parts? [Things to consider – there are many more people needing transplants or replacements of one thing or another than there are donors – so give this serious thought; talk to the doctors about the procedures used to “harvest” organs so that you and your family become comfortable with the process before agreeing; you can designate specific things (for example, your eyes or corneas, skin, heart, liver, kidneys, etc.) if you do not want to do a general donation; it is fine to decide not to donate and all people are not suitable donors. Also remember, that regardless of what written information you have provided about this (such as designating on your driver’s license that you want to be a donor) in most situations, the family gets to make the final decision – so be sure they know what you want to have happen]
- Do you want pain medication to lessen your pain even if administering it might lead to an earlier death? [Things to consider – how much pain can you tolerate; God won’t take you before your time]
- If you are unable to breathe on your own, do you want to be put on a breathing machine or other artificial means of breathing? [Things to consider – breathing is an essential function and if you cannot breathe you will die sooner as opposed to later. There are circumstances where artificial breathing methods “fill in the gap” and provide your body with a chance to heal and the artificial breathing mechanisms can be removed; there are other situations where a person will need help breathing for a significant period of time. Talk to your doctors and other medical professionals when making this decision and talk to your family and friends about when, if you have breathing assistance, it might be time to remove it.]
There are many other things addressed in a Durable Power of Attorney for Healthcare which is why it is important to have one, to talk to your family and friends about what you think you might want and to make changes to it as your circumstances change.
Similar to the Durable Power of Attorney, the Durable Power of Attorney for Healthcare must be signed and witnessed before it is effective and it also can become effective upon signing or upon a “triggering event.” It is as important to carefully choose the person you want making your health decisions – including life and death decisions – as it is to chose the person to manage your finances.
Good news – you do not necessarily need an attorney to prepare either of these documents for you – you can do it yourself. However, you should talk to an attorney and financial person and health care person to be sure you understand the implications of the decisions you make. If you decide to do this yourself, be sure to consult the statutes of the state where you live, so that the document is prepared in accordance with that state’s requirements. Each state is a little different so you need to comply with the specific requirements of your state of residence. Because of the residences of our members, I am providing statutory citations for DC, Maryland and Virginia.
DC: DC Code Title 21, Chapter 21 for Durable Power of Attorney for Finances (See also §§21-2081 to 21-2085)
DC Code Title 21, Chapter 22 for Durable Power of Attorney for Healthcare
MD: MD Code, Estates and Trusts, Title 17 for Durable Power of Attorney, Subtitles 1 and 2
MD Code, Health, Title 5, Subtitle 6, Parts 1 and 2
VA VA Code §§26-72 through 26-116 generally Durable Power of Attorney
VA code §§54.1-2983.3 through 54.1-2995 Advance Directive for Healthcare
Remember, you know not the day nor the hour when the unexpected may happen. Be prepared.
Calloway LLC 2012. All rights reserved