Chapter 4 Planning for Incapacity: Medical Care and Finances

• Library: Estate Planning Basics (Nolo) (2022 Ed.)

CHAPTER 4: Planning for Incapacity: Medical Care and Finances

Medical Decisions

Living Wills and Powers of Attorney for Health Care

In an Emergency: DNR Orders and POLST Forms

Financial Decisions

Granting Authority to Your Attorney-in-Fact

When Your Durable Power of Attorney for Finances Takes Effect

Finalizing Your Durable Power of Attorney for Finances

As we grow older, we face the possibility of becoming mentally or physically incapacitated (or both) for some period of time, perhaps even for many years. Though it may be difficult to consider your own incapacity, wise planning means taking this bleak possibility into account. In particular, life-support issues can become confusing and contentious if you become incapacitated without a clear written statement of your desires regarding continuing treatment. You can plan ahead by preparing a few simple legal documents to ensure that your medical and financial wishes are carried out if you are unable to speak and act for yourself.

Of course, because unforeseen accidents and illnesses are possible, it's sensible to prepare these documents as part of your estate plan, no matter what your age or the state of your health. Functionally, they work as a kind of insurance, becoming operational only if you in fact become unable to manage your own affairs.

RESOURCE

Planning for long-term medical care. You may also want to plan for the possibility that you'll need long-term medical care. This is covered in Long-Term Care: How to Plan & Pay for It, by Joseph Matthews (Nolo).

Medical Decisions

In recent decades, the increasing use of life-sustaining medical technology has raised fears in many that our lives may be artificially prolonged against our wishes. The right to die with dignity, and without the tremendous agony and expense for both patient and family caused by prolonging lives artificially, has been confirmed by the U.S. Supreme Court, the federal government, and every state legislature.

Planning for Incapacity: Vocabulary
Several terms used in this chapter sound similar but have distinct meanings. Here's a chart to help you keep them straight.
Term	Also Called	What It Means
Living Will	• Directive to Physicians • Health Care Declaration • Medical Directive • Health Care Directive	A legal document in which you state your wishes about life support and other kinds of medical treatments. The document takes effect if you can't communicate your own health care wishes.
Durable Power of Attorney for Health Care	• Medical Power of Attorney • Power of Attorney for Health Care • Designation of Surrogate • Patient Advocate Designation	A legal document in which you give another person permission to make medical decisions for you if you are unable to make those decisions yourself.
Advance Health Care Directive		Any of the documents discussed above may be called an "advance health care directive;" the term most often refers to a legal document that includes both a health care declaration and a durable power of attorney for health care. This type of combined form is currently used in more than one-third of the states.
Do-Not-Resuscitate (DNR) Order	DNR Form, DNR Directive, Comfort One	A medical order or form, usually signed by a doctor, that documents your wish not to receive CPR or other invasive resuscitation techniques if you stop breathing or your heart stops beating.
Physician Order for Life-Sustaining Treatment (POLST)	Provider Order for Life-Sustaining Treatment, Physician Orders for Scope of Treatment (POST), Medical Orders for Scope of Treatment (MOST), Medical Orders for Life-Sustaining Treatment (MOLST), Clinician Orders for Life-Sustaining Treatment (COLST), Transportable Physician Orders for Patient Preferences (TPOPP)	A medical order signed by a doctor or other qualified health care professional. A POLST form is used in health care settings to document your instructions for medical care at the end of life. It is not a substitute for an Advance Health Care Directive.
Health Care Agent	• Attorney-in-Fact for Health Care • Patient Advocate • Health Care Proxy • Surrogate • Health Care Representative	The person you name in your durable power of attorney for health care to make medical decisions for you if you cannot make them yourself.
Durable Power of Attorney for Finances		A legal document in which you give another person authority to manage your financial affairs if you become incapacitated.
Attorney-in-Fact for Finances	Agent for Finances	The person you name in your durable power of attorney for finances to make financial decisions for you if you cannot make them yourself.
Springing Power of Attorney		A durable power of attorney that takes effect only when and if you become incapacitated.

Writing down your wishes for medical care and appointing a trusted person to be sure those wishes are carried out can help alleviate fears, whether you worry about receiving unwanted medical treatment or you want health care providers to do all they can to prolong your life. It can also be a huge help to family members who might otherwise agonize about making medical decisions on your behalf.

Living Wills and Powers of Attorney for Health Care

Every state has laws authorizing individuals to create simple documents setting out their wishes concerning life-prolonging medical care. There are two basic types of medical care documents you need to prepare to ensure you'll receive the care you want.

First, you need or want a "living will" or "declaration," a written statement to medical personnel that spells out the medical care you do or do not want to receive if you are incapacitated. (The term "living will" should not be confused with the conventional will you use to leave your property at death.) Your declaration functions as a contract with the treating doctor, who must either honor your wishes for medical care or transfer you to another doctor or facility that will honor them.

Second, you should definitely prepare a "durable power of attorney for health care" (sometimes called a "medical power of attorney," "designation of health care surrogate," or "patient advocate designation"). In this document you appoint someone you trust to be your health care agent (sometimes called an "attorney-in-fact for health care" or "health care proxy") to see that your doctors and other health care providers give you the kind of medical care you wish to receive. In many states, you can also give your health care agent greater authority to make decisions about your medical care...