Dear Mr. Miller:
I’m concerned about making sure that my kids carry out my wishes. I have a Living Trust so what I want to occur after I’m gone is laid out. But what about if I’m in an accident or have a stroke and can no longer function mentally? How do I know that my wishes for my care will be honored–or even known? I don’t really see any place to put that. What can I do?
Petrified of Incapacity
Sometimes we Estate Planning Attorneys are probably a bit more focused on death and not sufficiently focused on life. You raise an excellent point. How will they know your desires?
Basic Level: As with everything, there are different levels of “protection.” Most pre-printed Health Care Directives (Power of Attorney for Health Care/Medical Proxy, etc.), as well as attorney drafted ones, do have a section dealing with DNR (Do Not Resuscitate) in irreversible comas and situations in which the person is terminal. Others that I have seen have a matrix of DNR requests for this or that illness and severity level. But that’s the bare bones approach!
The more advanced level has to do, not with your dying but, with your living: One approach that we have used is to look at things from your appointed person’s, (the person who will be in charge of your care) perspective. Let’s call this person the manager. What would that person want to know? How about what insurance you have, how is it paid, who is it with? Or if you want to be brought home from the skilled nursing or rehabilitation facility even if insurance will not completely pay for it? Under what circumstances? Yes, you can write this all down and put it with the voluminous paper work that is included with your Living Trust, Wills, Powers of Attorney, Deeds, etc. But will your manager find that piece of paper? Typically they are involved and all consumed by straightening everything out with the various financial institutions to get access to money. The banks will ask for the Power of Attorney or Living Trust and that’s what your manager will grab, not the “My Request for Care” letter (or whatever you titled it) that you so diligently wrote.
Integrate the Care Instructions: So what’s the solution? Put those care instructions in the Power of Attorney for Finances and the one for Health Care. What goes in there: Who handles your Health Care (Medicare, Work Provided, Individual), Drug Plans, Medicare Supplement, Disability, Life Insurance policies, Long Term Care, who is your agent with contact information, how is it paid–auto deduction or paid monthly/quarterly? Whether you want to come home if you can be sufficiently cared for there. Should the manager hire a care manager to make these decisions? If not covered by insurance, who pays for that type of assistance? That type of stuff in an organized and comprehensive manner. And written in a legally appropriate manner so that the manager will take the actions you wish.
I have seen clients try this on their own and I have seen them leave out important information or write it in a confusing or non binding manner or even void the power of attorney itself. So as with everything legal, if it is really important, do it through your attorney.