Saturday, April 16, 2016, is the annual National Healthcare Decisions Day. National Healthcare Decisions Day is an event established to encourage Americans to become more educated about end-of-life issues and to plan for the future. The theme for 2016 is “It Always Seems Too Early, Until It’s Too Late.”

These issues are important, but seldom discussed because none of us like to think about our own death. The U.S. Agency for Healthcare Research and Quality, in a 2003 article, “Advance Care Planning: Preferences for Care at the End of Life,” found that less than 50% of the severely or terminally ill patients studied had an advance directive in their medical record. Worse, 65 – 76% of physicians whose patients actually had an advance directive were not aware that it existed. We’d like to take National Healthcare Decisions Day as an opportunity to help you learn about estate planning and Durable Powers of Attorney.

One of the most important estate planning documents to have is a Durable Power of Attorney for Healthcare. This document allows you to designate another person to make medical decisions for you if you are unable to do so. Our office normally includes healthcare provisions in a Durable Power of Attorney that also includes the ability to handle business and financial affairs as well.

Should I have a Durable Power of Attorney?

Having a Durable Power of Attorney is a good idea, but there are some important things to think about before seeing your lawyer.

First of all, who should you name as your Attorney In Fact? The Attorney In Fact is the person who will be standing in your shoes to make decisions for you, so it should certainly be someone you trust. Your Attorney In Fact does not have to be a family member, but it should be someone who will exercise sound judgment and discretion, and someone who will act in your best interest. Also, it is usually a good idea to name a back-up (or a Successor Attorney In Fact) in case the first person you name is unwilling or unable to serve.

Second, what life-prolonging measures do you want to receive or do you want withheld in the event you are persistently unconscious or there is no expectation of your recovery from a seriously incapacitating or terminal condition? You can give your Attorney in Fact as much or as little power as you deem best. Most people give their Attorney in Fact comprehensive power to oversee health care decisions when you are unable to do so for yourself. This means that your Attorney in Fact will be permitted to:

1. consent or refuse consent to any medical treatment that affects your physical or mental health (subject to certain state law prohibitions) For example, do you want a feeding tube to keep you alive? Do you want to be on a respirator if you are not able to breathe on your own? What about CPR? Dialysis? Chemo or radiation?
2. decide which medical personnel will provide your health care
3. decide the best medical facility to provide your health care
4. visit you in the medical facility even when other visiting is restricted
5. access medical records and other personal information, and
6. obtain court authority, if required, to honor your wishes if medical provider refuse to recognize the Power of Attorney.

The Federal Patient Self-Determination Act requires that all Medicare-participating healthcare facilities inquire about and provide information to patients on Durable Powers of Attorney for Healthcare or other Advance Directives (like a living will). All healthcare facilities are required to:

1. Provide information about health care decision-making rights.
2. Ask all patients if they have an advance directive, like a Durable Power of Attorney for Healthcare or a living will.
3. Educate their staff and community about advance directives.
4. Not discriminate against patients based on an advance directive status.

Additionally, under Missouri law, your Power of Attorney may provide your Attorney in Fact with authority to direct the disposition of your body, including authorizing an autopsy, carrying out your wishes for organ donation, and burial. If you want your Attorney in Fact to have these powers, these should be spelled out in the document.

Finally, you should keep in mind that your Attorney in Fact steps in only if you can no longer manage your own affairs. Some people are still concerned about the authority granted to the Attorney in Fact and choose to limit the powers made available. You can set any restrictions you deem best in the Power of Attorney. You should think carefully, however, before you limit your Attorney in Fact. One of the most important reasons for appointing an Attorney in Fact for health care decisions is so that the Attorney in Fact can fully respond to your medical condition as it develops. Your medical needs may change in ways that you cannot see, and an Attorney in Fact with comprehensive authority can act for you no matter what the circumstances.

Let National Healthcare Decisions Day Spur You to Action!

These decisions can be difficult to make on the spur of the moment while meeting with your lawyer, so spend some time thinking about them in advance. Giving these matters some thought in advance can help you make the most of your appointment with your estate planning attorney. Let National Healthcare Decisions Day be a time to consider your estate plan if you don’t have one, or to revisit the plan if you have one in place. The attorneys of Kennedy, Kennedy, Robbins, & Yarbro, LC will be happy to assist you. Please contact us or call us at (573)686-2459 to discuss your estate planning needs.