Planning for Incapacity Emphasis on: Powers of Attorney Health Care Powers of Attorney Living Wills

Planning for Incapacity zWhat happens if someone becomes incapacitated and has no plans in place? zIf client becomes incompetent; yno one authorized to handle affairs xsign checks and pay bills xtransact any business xMake health care and other personal care decisions zMust go through cumbersome process to: zHave person declared incompetent, and zhave a guardian appointed.

Financial Planning Tools z Create joint ownership vehicles yJoint ownership with right of survivorship x Real estate x Vehicles x Bank accounts zInstruments with beneficiaries xlife insurance xRetirement accounts z Powers of attorney

POWERS OF ATTORNEY zLegally recognized document zBy which 1 person gives another zThe power or authority to act on his or her behalf

Some Definitions z“Principal”: Person who gives another a power to act through a power of attorney. z“Attorney in Fact”: Person to whom power is given.

Powers granted in a POA zCan be broad--basically allowing the attorney-in-fact to do any delegable task zor can be limited by the principal

Powers Granted in POA zGenerally relate to finances zbusiness affairs zreal estate ztaxes zcontracts zand other similar transactions

Powers Granted, cont’d zN.C.G.S. Sec. 32A-2

Duration of Power of Attorney zLimited duration ylimited by period of time specified in POA. zIndefinite duration yeffective upon signing yremains in effect until: xdeath of principal or xrevocation by the principal.

Durable Power of Attorney zSurvives the mental incapacity of the principal zPOA must specify that it survives the mental incapacity of the principal.

Our Recommendation zDurable Power of Attorney yI.e. which survives the principal’s incompetence. zEffective immediately zWith broad powers zExhibit D--short form—p. 15

Conditional Power of Attorney zComes into effect only after the Principal’s incompetence. zIs also “durable.” zExhibit F—p. 23

Problems with Conditional Powers of Attorney zDetermining when the Principal is Incompetent; zReluctance of some banks, etc. to accept conditional powers of attorney.

Recording Requirement zIn order to use after mental incapacity; yrecord in County where principal resides zif used for real estate transactions, yrecord in both county where principal resides, and yin county where real estate is located.

Power of Attorney Protocols zExhibit B—p. 12 zExhibit C, Power of Attorney Intake– p. 14

Health Care Advance Directives zHealth Care Power of Attorney zAdvance Directive for a Natural Death (“Living Will”)

The Need for Planning…. z Terri Schiavo case underscored importance of planning for incapacity yDeciding preferences, values ySharing desires with family and friends yChoosing a trusted person who can implement wishes yExecuting appropriate documents yGiving the documents to persons who will carry them out --- health care agent (proxy), physicians, health care facilities

Health Care Power of Attorney zSpecialized power of attorney: zgrants agent power to make health care related decisions; zallows client to also specify wishes about health care;

When does the HCPOA come into effect? zOnly upon the mental incapacity of the principal. zAs long as the principal is competent, s/he will make his/her own health care decisions.

How is Incompetence Determined? zBy a physician named by the principal in the document, or, if that physician is not “reasonably available,” zBy the attending physician, if so stated in the health care power of attorney

Powers of Health Care Agent zCan be broad--any health care decision the principal could make if competent, or zCan be limited.

Specific Powers Granted zRight to consent or refuse consent for medical treatment and diagnostic procedures zto employ or discharge medical providers; zto access medical records zto direct disposition of remains, donate organs, authorize an autopsy

Additional Authority zAuthorize withholding or withdrawal of life-prolonging measures. z“Medical procedures or interventions which in the judgment of the attending physician would serve only to postpone artificially the moment of death by sustaining, restoring, or supplanting a vital function, including mechanical ventilation, dialysis, antibiotics, artificial nutrition and hydration, and similar forms of treatment. Life-prolonging measures do not include care necessary to provide comfort or to alleviate pain.”

Possible Limitations on Authority to Withhold or Withdraw Life-Supporting Measures. zClient has an incurable or irreversible condition that will result in his/her death within a relatively short period of time; zClient becomes unconscious and his/her health care providers determine that, to a high degree of medical certainty, s/he will never regain consciousness; zClient suffers from advanced dementia or any other condition which results in the substantial loss of his/her cognitive ability and his/her health care providers determine that, to a high degree of medical certainty, this loss is not reversible.

Artificial Hydration/Nutrition zCan choose not to have life-prolonging measures used except for artificial hydration or nutrition zClause in our form: “ unless my attending physician determines that artificial hydration or nutrition would decrease my comfort, increase pain and distress, or increase risk of harm to me (e.g. aspiration, fluid overload or other complictions) while failing to prolong my life.”

Directive for Maximum Treatment z Some clients want to have everything done at the end of their life. z I do not authorize my health care agent to withdraw, withhold or discontinue any life-prolonging measures. I want my life to be prolonged to the greatest extent possible, within the standards of accepted medical practice, without regard to my condition, the chances I have for recovery or the cost of the procedures.

Mental Health Planning z“Advance Instruction for Mental Health Treatment” (can incorporate into hcpoa) zPermits a chronically mentally ill person to make decisions about treatment in the event s/he becomes “incapable” of making those decisions. yTreatment (medications, ECT) yInpatient Admission yAppointment of mental health care agent, if desired.

Health Care Power of Attorney Form zExhibit O -- p. 37 zNew form zMay see former clients with old forms.

Health Care Power of Attorney Protocols zExhibit L: Protocols—p. 31 zExhibit N: Topics to Discuss with Agent– p. 35 zExhibit M: Intake form—p. 33

Living Will—Advance Directive for a Natural Death zStates client’s wishes regarding the use or removal of life-prolonging measures if client lacks capacity to make or communicate health care decisions.

Standard Living Will Form Living will can apply to 1 or all of following situations: zClient has an incurable or irreversible condition that will result in his/her death within a relatively short period of time; zClient becomes unconscious and his/her health care providers determine that, to a high degree of medical certainty, s/he will never regain consciousness; zClient suffers from advanced dementia or any other condition which results in the substantial loss of his/her cognitive ability and his/her health care providers determine that, to a high degree of medical certainty, this loss is not reversible.

Artificial Hydration/Nutrition zClient can give instructions re: artificial hydration and/or artificial nutrition.

Effect of Living Will zClient chooses whether the health care provider “may” or “shall” withhold or withdraw life-supporting measures under the circumstances provided in the Living Will.

Operation in Conjunction with a Health Care Power of Attorney z HCPOA and Living Will should be consistent; zClient can choose whether health care agent can override the instructions in the Living Will or whether the Living Will trumps the health care agent.

If Patient does not have Living Will zLife-prolonging measures may be withheld if: yPerson lacks capacity to make or communicate health care decisions and will never regain that capacity, and;

If No Living Will--cont’d zPatient has an incurable or irreversible condition that will result in the person’s death within a relatively short period of time, or zPatient is unconscious and, to a high degree of medical certainty, will never regain consciousness, and zcondition is confirmed in writing by physician other than attending physician, and zVital bodily function of the person could be restored or is being sustained by life-prolonging measures.

If No Living Will--cont’d zMay withhold or withdraw life-prolonging measures with concurrence of: yhealth care agent to the extent authority is granted in HCPOA yguardian of the person yperson’s spouse ymajority of the patient’s reasonably available parents and children who are at least 18 years of age;

If No Living Will--cont’d zA majority of the patient’s reasonably available siblings who are at least 18; or zAn individual who has an established relationship with the patient, who is acting in good faith on behalf of the patient, and who can reliably convey the patient’s wishes.

If No Living Will, cont’d zIf none of the above are available, life- prolonging measures may be withheld zat the discretion of the attending physician.

Living Will Form zExhibit X – p. 55

Living Will Protocols zExhibit W– p. 54

SUMMARY OF DOCUMENTS zExhibits A (p. 11), K (p. 30), V (p. 53)

REVOCATION zExhibit U (Health Care Power of Attorney) (p. 52) zExhibit G (Power of Attorney) (p. 26)