Power of Attorney
Eventually everyone dies. This is not a morbid thought, but rather a fact of life. Death may come as a result of accident or illness, or may be the eventual result of the aging process.
Because the time of death, unlike the fact of death, is unpredictable, a prudent person should undertake some preparations for this eventuality. These preparations fall into two general areas: business and personal affairs and medical decisions if one becomes incapacitated.
Business and personal affairs focus on the disposal of personal property and one’s business relationships. Although these decisions are personal, there is often the need for help from financial counselors and attorneys to ensure that the wishes can be properly implemented. Seek professional help concerning the carrying out of your wishes.
The second general area involved in end of life planning concerns medical decisions. The concern is how and by whom your medical decisions will be made if you become incapacitated and unable to make these decisions for yourself.
There are four possible options for medical decision making if you become incapacitated. These are (1) guardianship, (2) living will, (3) durable power of attorney, and (4) next of kin. While you have capacity, you may select and change among some of these options. Remember that there is no way to avoid this issue. Not selecting any of the options means that you have by default selected the next of kin option. Two of these choices involve the use of a written legal document called an advanced directive. The two remaining options depend on your kin or the courts to make the treatment decisions for you. If you have decided not to use an advanced directive, then you have decided to permit your kin or the courts to act for you. You cannot waive making a decision.
At the time of hospitalization, it is possible to designate that there are certain kinds of care that you do not wish to receive. Commonly these are called DNR orders, meaning Do Not Resuscitate. This means that in the event of a sudden stopping of your heart or breathing, you have directed the physicians and other health care workers not to attempt to revive you. This type of order is often used when a patient has reached the end of an otherwise untreatable problem such as terminal cancer.
The major drawback to this type of plan is the very terseness of the directive. It leaves the medical care personnel with a yes or no response in a maybe situation.
This is an advance directive document in which you designate a person (surrogate) who will make your health care decisions for you if you become mentally incapacitated. You must choose an individual in whom you are willing to place your trust for life decisions and who is willing to accept that responsibility. It is wise and prudent to select an individual who understands your personal feelings concerning health care at the end of life so that he or she is able to interpret these wishes in the setting of your changing health care needs.
Durable power of attorney permits a clear indication of your own preferences regarding various methods of lifesaving care. It differs from a living will in that it also allows you to appoint a specific individual or individuals who, if you become incapacitated, will act for you. You give them your power of attorney. They know and understand your wishes but are also able to interpret them in light of changing circumstances. The principal problem may be the selection of a person to act for you (your surrogate). Also, if you do not select a surrogate, decisions may be made for you by an available next of kin, not necessarily by the person you might select.
If you do not elect to use an advanced directive, then in the event of your incapacity, the laws of your state permit the decisions to be made by your next of kin. If the courts have intervened to appoint a guardian for you, the guardian will take precedence over your next of kin. If you are married, your spouse will be your next of kin. If you are single, widowed, or your spouse is incapacitated, other of your kin will be empowered to become your decision makers. Each state has an order of priority for which next of kin will be selected. Usually this begins with your children, followed by parents, brothers and sisters, and more distant kin.
If you rely on next of kin, the choice of your decision maker will be left to chance and will depend on the circumstances at the time of your incapacity.
Guardians are court-appointed individuals designated to act for you in business, personal, and health matters. They are usually appointed after incapacity occurs. At the court’s option, the guardian may or may not be kin. Guardians are often appointed when kin disagree and cannot reach a decision.