Often people come in to ask for an “estate plan.” Sometimes, they have an idea of what a comprehensive estate plan should include. Other times, they simply have a vague notion that a trust of some sort is probably helpful. However, healthcare planning is a large part of the planning process.
The VA offers a Power of Attorney (POA) for healthcare and often requests that the patient fill one out to designate healthcare agents before they receive VA medical services. This POA is effective only within the VA. In the event of an emergency, if you are admitted to another healthcare facility without your agent’s knowledge, your assigned agent will not generally be recognized by that institution, especially if your chosen agent is not a family member. In fact, the VA has different rules for financial powers of attorney as well. Even if you have designated a POA with the VA, you should still prepare other healthcare planning documents.
Generally, your attorney will prepare an Advance Health Care Directive (AHCD) in which you designate agents for healthcare who will be accepted by any hospital or healthcare facility. However, one of the basic qualities of an “agency” relationship is that your agent is standing in your shoes to make decisions. Your agent may not make healthcare decisions you would not be allowed to make if you were able. Similarly, your agent is allowed to make any decision you would be allowed to make.
Unlike a trust, an AHCD is not binding. The directives you offer within the document, such as an order to withhold artificial nutrition, is really simply a statement of preference. Additionally, these documents are almost always written with broad instructions and a wide latitude for decision-making. The AHCD is written to help your agent apply your preferences to your situation as it arises. For example, if you state that you do not wish to receive artificial nutrition and hydration under any circumstances, your agent may consult with your physician and direct that you receive the treatment anyway because the agent has determined it is what you would have wanted under the circumstances. The point is, the document can only do so much.
This is where you come in. When you choose your agent, it is important that the agent understand the types of treatment you would want, and exactly what you would not want. It is important that the agent will put your desires for dignity in illness and death (or your religious beliefs as applicable) ahead of their own desire to save you. As with all your estate plan documents, you should ensure that the person you choose is willing and able to carry out your wishes.
Occasionally, you will find that your agent(s) just can’t bring themselves to make the decision to withhold or withdraw vital treatment, such as life support. This is where a Directive to Physicians or a Physicians Order for Life Sustaining Treatment (POLST) comes in. The former applies if you have chosen a cut-off point for life-saving treatment, generally when your hope of recovery is almost non-existent after ample time for observation, and in that situation you may give a particular physician or group of physicians the power to end treatment even when your agent will not. Doing so may offer your agent additional peace of mind. The POLST is a pre-signed physician’s order for certain treatment or non-treatment. Some states authorize one form, others another. Regardless of which documents you have, it is important that you verify that it correctly states your desires and that you have communicated them to your agents. As uncomfortable as these conversations may be, undesired medical treatment is less comfortable!
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