The Medical Durable Power of Attorney -

 A Roadmap to Care

By Bryan C. Benbow 

 

The concept of estate planning is twofold: it not only addresses creating a plan for the disposition of a person's assets upon his or her death, but it also encompasses planning for the individual during his or her lifetime.  There are two important documents that every adult should have, regardless of age: a Financial Durable Power of Attorney, which we discussed last month, and a Medical Durable Power of Attorney.  Both documents work during a person's lifetime, and stop working upon a person's death.  This month, we will focus on the Medical Durable Power of Attorney. 

 

A Medical Durable Power of Attorney is a legal document giving one person (called an "Agent" or "Attorney-in-Fact") the power to act for another person (the "Principal"). A Principal retains the power to act on his or her own behalf--the Principal is merely sharing his or her power with the Agent.  Even then, a Medical Durable Power of Attorney only works when the Principal does not have the capacity to make medical decisions.  Examples of when a Medical Durable Power of Attorney may be helpful include when the Principal is in surgery or under the effects of anesthesia; when the Principal is receiving sedating drugs, such as morphine; when the Principal is in a coma; or when the Principal experiences temporary hospital dementia.  An Agent can have broad legal authority or limited authority to make legal decisions about the Principal's heath care matters. 

 

Under Colorado law, an Agent is bound by the following principles:

• An Agent must follow the directives and limitations specified in the Medical Durable Power of Attorney and in conformance with the Principal's wishes;
• If the Principal's wishes are unknown, an Agent must act in the best interest to the Principal; and
• The Agent must consult with the Principal's attending physicians to understand the Principal's medical conditions.     

Why execute a Medical Durable Power of Attorney? Consider this example:  Terri was 26 years old when she collapsed, suffered cardiac arrest, and went into a coma.  Her doctors diagnosed her as being in a persistent vegetative state.  For the next 15 years, she spent her life in a coma before her feeding tube was removed.  During those 15 years, Terri's husband and her parents engaged in endless legal battles, each claiming that he or she knew what Terri would want.  Terri's husband believed that Terri did not want artificial medical assistance, including artificial nutrition and hydration.  Her parents disagreed.  But who knew Terri best?  And what would Terri have wanted?  And who was best suited to make decisions on Terri's behalf?  These were questions that could not be answered with any certainty and thus, Terri Schiavo's fate was undecided for many years.  If Terri had executed a Medical Durable Power of Attorney, it would most likely have given medical and legal professionals a roadmap to follow, because Terri would have made her wishes known with respect to medical decisions and, moreover, she would have designated someone as her Agent, indicating her choice for someone to speak on her behalf.   

 

A person's wishes regarding medical treatment during or after a serious illness or injury are personal and can vary greatly.   People raised in the same family, or from the same religious or cultural traditions may have vastly different wishes when it comes to medical care.  While a Medical Durable Power of Attorney cannot anticipate every medical situation, it does accomplish the following for the Principal and the Principal's loved ones. 

 

1)      A Medical Durable Power of Attorney allows the Principal to choose his or her advocates instead of leaving medical and legal professionals to make an educated guess as to whom the Principal would want to make decisions. 

2)      A Medical Durable Power of Attorney allows the Principal to specify the Principal's own unique wishes regarding care, including continuing or removing artificial nutrition and hydration, experimental treatments, and pain relieving measures.  These wishes, when documented, give an Agent a roadmap to follow as the Agent navigates the decisions presented concerning the Principal's medical condition. 

3)      A Medical Durable Power of Attorney will, ideally, minimize tension among loved ones because the Principal has made his or her wishes known and has selected a person or persons to make decisions.

 

 

 

October 20 and 21, 2011:  2011 Special Needs Trusts, The National Conference, The DonCeSar Beach Resort, St. Petersburg, Florida. "Taxation of SNT's," and "Drafting a Medicare Set Aside Sub Trust into a SNT." 

 

November 8, 2011:  National Aging and Law Institute, NAELA Advanced Elder Law Bootcamp, Boston Seaport Hotel, Boston, Massachusetts. "Employment and Retirement." 

 

November 28, 2011:  Washington State Bar Association CLE, Seattle, Washington.  "Special Needs Trust Tax Issues."

 

For a complete list of Brad's speaking engagements, please visit our website.

It is hard to believe that I have been practicing law for 30 years.  Yet when I reflect on what has had the most impact on me, personally and professionally, it would be all of you, my valued clients.  The satisfaction of working with each of you to achieve your goals has been my most meaningful reward.  Thank you for your continued trust.

We always appreciate referrals from our satisfied clients, friends, business  partners, and  their  family members. We welcome the opportunity to serve the  people you care about. Please use the "Contact Us" link near the top of this Newsletter to contact our staff.  

 

Click on the "Forward Email" at the bottom of the page to send this newsletter to someone who will benefit from our advice.