Long-Term Care Legal Planning
How does 'power of attorney' affect long-term care?
There are different kinds of 'powers of attorney', but there's a general 'power of attorney' that might have to do more with financial issues and being able to sign in place of your parent, and then there is a healthcare 'power of attorney'. When it comes to long-term care, both of them may be useful in some situations and 'power of attorney' can, some of them you can act in the stead of your parent even if they're still completely with it. There are others that have a springing clause where you only take over if they're incapacitated. It's important to look into those things, but as far as decision making and so on, if your parent is incapacitated and not able to make informed decisions on their own behalf, then you can essentially sign them into a skilled nursing facility or things of that nature, assuming that they are not physically able to escape.
What is an advance directive?
An advance directive is any of a variety of documents that make your wishes known. It is essentially the preferred intensity of care that you would want to receive in certain situations. There is a whole variety of how sophisticated these documents are. It's an advance directive, not advanced. A lot of people misuse that term. Some of them are not very advanced at all; they are very, very simple. They just say, if I'm incapacitated I want my daughter, Mary, to make the decisions on my behalf. Whereas there are others that are very complex that would say, I don't want a feeding tube, I would consider short term IVs, I don't want to be on a ventilator, and very specific types of directives.
Why are advance directives important?
I'd say advance directives are critically important, because they allow you not to wind up in a situation like Terry Shiavo. The kinds of situations that we sometimes see where somebody comes out of the hospital to the nursing home, and they've got a feeding tube and they've had a severe stroke and they are not able to communicate and you have a conversation with the family and say "Well I assumed that your dad would want everything done at all costs to keep him alive, right'? They may say, no he would have never wanted any of this. Then you think, then how did he wind up with the feeding tube? Sometimes physicians or other health care providers don't necessarily have those conversations with people. But if you've got it documented, "I don't ever want to be placed on a feeding tube", then it makes it very easy for your family to say, "My dad would have never wanted a feeding tube placed". “If he is not able to eat then we want to let nature take its course, that is what he would have wanted and we want to respect his wishes". Now I want to say, nowadays it happens a lot less then it used to. You don't have hospitals getting court orders to tube feed people against their will and thankfully. But it makes things a lot easier on everybody. It also makes things easier on your own family when they have got it written down and signed that when you were in your right mind that you would or wouldn't have wanted a certain intervention. I think it is very very important to both have the discussion and to document it, and it is best to do that when you are young because you never know when you are going to go out and get hit by a car or whatever and you don't want to wind up in a situation that you would have never wanted to be in.
Where can I get an advance directive?
As far as where to get the actual forms and the specific type of document that you may want to execute as far as an advanced directive – at least in California it's required that all Physician's offices have on hand the blank forms for a durable power of attorney for health care, where you can designate somebody to make decisions on your behalf if you are incapacitated. Also, any physician's office would have, what we call, free hospital DNR forms or Do Not Resuscitate forms. So if you are somebody who says “I don't ever want them pounding my chest” or “giving me electrical shocks” or “Putting a tube down my throat to breathe for me”, if you are ninety years old that is probably a pretty reasonable thing to do to not want people to do, since your risk of surviving is pretty slim. You should be able to get that in your own Doctor's office. Post it on your refrigerator so that if the Paramedics come they can be shown the form and they won't do the heroic measures or the painful invasive measures. You can also contact an elder law attorney that's always a good source, and on the Internet and in fact the American Bar Association has some excellent forms that will help. It will ask questions that you won't even ever have thought of, as far as what you value and what things would make you want to prolong your life versus what things that you would not want to prolong your life with. So that would also be a good source.
What is a declaration?
A declaration is a term that's used in some states, and I believe here we would typically call that a directive to physicians, that you could specify specifically things that you might never want. So, for example, it might say if I am ever in a coma, an irreversible coma, or if I am suffering from a terminal condition I do not want my life to be artificially prolonged with the use of intravenous fluid, tube feeding of any kind, and any of a number of specific things that would be important to you as an individual. These types of advance directives, or sometimes you could call it a living will, are where it's not saying I'm going to let my daughter make these decisions. All it says is here's what I don't want ever. And then you give it to the health care professionals, and hopefully they will follow what you said. It's a legally executed document.
Why would I need a living trust for long-term care?
As far as why you might need a living trust, I think any time you want to specify specific preferred intensity of care desires that you have and you are not a hundred percent sure that there is somebody you can trust to actually do those things for you, it is a very good idea to have those written down specifically in a directive to physicians. It bypasses that middle person. I can tell you from personal experience, that many times, family members have a hard time honoring the wishes of a loved one. They just, for whatever reason, have some unfinished business with Mom or whatever it is. It is very difficult to say, “We're just going to let Mom die,” essentially, and “we are not going to give her food or fluids.” It has got a very emotional context to it, although in reality, we allow people to die that way on a daily basis and they don't appear to be uncomfortable in any way. I would say most of us could only pray for that peaceful an exit from the planet. It still has a bad reputation. People have religious ideas about it. They don't want to feel like they are doing something that will hasten their loved one's demise even though they know in their heart that's what their loved one would have wanted. They just have a hard time acting on that.
