Medical Estate Planning Documents: What You Need to Know

April 24, 2023Filed Under: Elder Law, Estate Planning

Wills, trusts, and transferring assets are typically thought of when people think of estate planning. However, there is another part of estate planning that doesn’t get as much attention. It concerns advance health care planning.

Have you thought about what type of medical care and treatments you want, or don’t want, if you become incapacitated or terminally ill?
Who would you trust to make health care decisions for you if you were not able to make decisions or communicate with the medical professionals who were caring for you?

If you don’t have the answers to these questions in writing ahead of time, decisions may need to be made in court by a judge. The care you get may be different from your wishes or beliefs. And the person selected to make decisions for you may not know what you want or share your values.

To ensure your health care wishes are honored, you need to spell them out in appropriate legal documents commonly referred to as advance directives. You don’t need to wait for later years. Every adult should have advance directives since a serious medical emergency could happen at any time.

Living Will

A living will is a legal document to specify which medical treatments you want to keep you alive if the need arises. You can also use a living will to express your pain management and organ donation preferences.

When considering what to put in your living will, think about your lifestyle, how you want to live, and what aligns with your beliefs and values. Here are some questions to ask when thinking about your living will:

Would you want medical treatments that would extend your life in any situation or just in particular situations?
Do you want a life-saving treatment only if a cure is available or you have a good chance of a full recovery?
Under what circumstances would you consider your life not worth living?
If you can’t eat solid or pureed foods, do you want to be tube fed? If so, for how long?
Do you want mechanical ventilation if you can’t breathe on your own? If so, for how long?
Do you want to be revived by CPR or similar methods if your heart stops?
What type of palliative care do you want if you are terminally ill? Do you wish to die at home or in a medical facility?
Would you like to donate your organs and tissues for transplant purposes?
Would you like to donate your body to science?

There are other options you can consider. An attorney experienced in estate planning and elder law can help you determine the best options for your situation.

Power of Attorney

In a health care power of attorney document, you name a person or persons who can make health care decisions on your behalf if you are unable to make decisions on your own. The name of this document varies from state to state. And how your chosen person (agent or proxy) is referred to also varies from place to place.

Even if you cover several scenarios in your living will, some situations you didn’t anticipate may arise. Having someone you trust to make decisions for you is especially important. When choosing a person to be your health care agent, choose someone who understands you well enough to know what you want and that you trust to make potentially difficult decisions if necessary. It is a good idea to choose at least one backup agent in case your primary agent is unable or unwilling to act.

HIPAA Form

A Health Insurance Portability and Accountability Act form allows you to name individuals who may receive information regarding your medical condition and history from healthcare professionals who are caring for you. Your HIPAA form should include all the agents you name in your health care directives.

Creating Your Advance Directives

Some attorneys combine a living will with a power of attorney into a single advance health care directive document. This is convenient since all the information is in one place. As mentioned before, healthcare documents are usually part of an estate plan, but they may also be stand-alone documents.

Reviewing and Updating Your Advance Directives

Over time your views and wishes regarding your end-of-life treatment may change. Also, you may change your mind about the person you want to make decisions for you. If you decide to update your advance health care directive, talk with your attorney. After updating your directive, make sure it replaces all existing originals and copies of the previous directive to avoid any confusion later.

This article summarizes aspects of estate planning law and elder law. It is not legal advice and does not create an attorney-client relationship. For legal advice, you should contact an attorney.

We hope you found this article helpful. If you’d like to discuss your particular situation, please don’t hesitate to reach out. Please contact our Cincinnati office by calling us at 513-771-2444 and schedule a consultation. We look forward to the opportunity to work with you.

How Do Advance Directives Work?

September 26, 2022Filed Under: Estate Planning

Winnie’s nursing home room door is open, and Kevin is standing in front of it, tears running down his cheeks. The medical staff just finished inserted a feeding tube into Winnie – an act Kevin knew she didn’t want. Unfortunately, Winnie couldn’t express her wishes due to advanced dementia, and she had no legal documents that expressed her wishes not to be fed by artificial means. Kevin had no choice but to sit back and watch his wife go through a procedure she didn’t want.

The situation with Kevin and Winnie could have been avoided through the use of proper advance directive. An advance directive is actually a collection of documents. What that includes differs depending on your needs and wishes, along with what the law allows. However, it usually means at least a Living Will, and a Power of Attorney for Healthcare.

The purpose of this set of documents is to allow you to control what happens to your health care in case you cannot speak for yourself. If certain criteria are met, your doctors must consult with your advanced directive before making decisions about your care.

Usually, what this means is that two doctors agree that an individual is terminally ill, permanently unconscious, or at the “end-stage” of a condition. Once that happens, and the individual cannot express their preferences, doctors turn to the advance directive to figure out what the individual wants.

A Living Will determines what happens to an individual making it, unlike a Last Will and Testament, which determines what happens to their money and possessions. A Living Will describes what healthcare providers can and cannot do to prolong your life and/or ease your pain when you cannot express those preferences yourself. For example, do you want to be placed on a ventilator if you cannot breathe on your own? Do you want a feeding tube and IVs set up, and if so, for how long? Do you want to be an organ or tissue donor?

A Durable Power of Attorney for Healthcare lets you choose someone to make healthcare decisions for you when you cannot. They still must follow your Living Will, but they will be able to make decisions not explicitly considered by your Living Will, in accordance with the facts of the situation. In most states, there are “default surrogate consent laws” which allow family members to make treatment decisions on your behalf, but who is chosen to make these decisions and what they choose to do may not be in accordance with your wishes, as it hopefully would be with a Durable Power of Attorney.

Other documents may be part of an advance directive by law, or they may be worth including of your own volition. These include Do Not Resuscitate orders and Physician Orders for Life-Sustaining Treatment, among others. You might also consider an advance directive in case of a mental health crisis.

This is a difficult subject to consider, and it always seems like it won’t be necessary. But nearly 70 percent of Americans don’t have plans in place for a worst-case scenario, which means for some of them, decisions may be made for them with which they would not agree if they had the capacity to choose. For that reason, it is worth thinking about implementing an advance directive even if it seems unnecessary now.

If you or a loved one would like more information about advance directives, please don’t hesitate to reach out. Please contact our Cincinnati office by calling us at 513-771-2444 with any questions.

The Duty of a Power of Attorney

August 16, 2021Filed Under: Estate Planning

Due to COVID-19, an impossible question especially demands a difficult answer: if you or someone you love is taken down into life-threatening illness, how far would you want extreme life-prolonging measures to be tried?

For us who are particularly vulnerable – seniors, those with compromised immune systems, those already struggling with medical conditions – this question is particularly stark. Many people are familiar with DNR orders, “do not resuscitate.” These are intended for cardiac arrest. The threats posed by the current virus, though, more often implicate breathing problems. The longer time spent on a ventilator, the greater the chances of

Many are dying alone, without their loved ones present. The New York Times recently reported on a particularly heartbreaking case.

Most people over sixty with a serious illness say they would prefer to be kept in comfort at the end, even if that care shortens life. But where to draw the line? How much time alive would you be willing to sacrifice, to decline aggressive treatment and possibly die sooner? The need to provide at least some answers is important not just for you. Clinicians and caregivers need guidance, too.

A 2017 study showed that approximately two-thirds of Americans had neglected to provide prior guidance by creating advance health-care directives like health care powers of attorney and living wills. Back then, most of us could not have imagined being in an epidemic like the one now.

Even if you or your loved ones have already done the responsible thing and created advance directives, now is the time to review those documents to make sure they reflect what you want under current conditions.

Health-care providers are ethically obligated to do everything feasible to keep us alive. If we have no advance directives in place, the system will take over – and families can end up in long-lasting anguish for having had to be the ones to make the final call. Don’t let that happen. Think through the question for yourself and talk with a person whom you trust to make that decision for you if need be. Call us for your advance health-care directives – and may you and yours not need them for a good long while. Contact us at 513-771-2444.

You Got Vaccinated Against COVID-19, Now What?

May 17, 2021Filed Under: Current Events

Throughout 2021, COVID-19 vaccines have become more and more readily available to nearly everyone. According to the medical community, vaccinated individuals are significantly less likely to contract COVID-19; however, they may pose a health risk to others. What then is appropriate behavior for vaccinated Americans when considering the health of others? For the moment, not much has changed.

First of all, experts have told us that the COVID-19 vaccines take at least two weeks from receiving the second dose (or the single dose of Johnson and Johnson) to build up your immune response. The Pfizer vaccine offers 95 percent efficacy, while the Moderna vaccine provides 94 percent efficacy, so you are highly resistant to COVID-19 but not completely immune. According to MarketWatch, Dr. Gregory Poland, infectious disease expert and director of the Mayo Clinic’s Vaccine Research Group in Rochester, Minnesota, the .9 percent difference in efficacy rates is “meaningless.” However, according to preliminary data, those who are vaccinated may still contract coronavirus though, they are more likely to be asymptomatic. In the same MarketWatch post, Dr. Thomas Russo, chief of infectious disease, University at Buffalo in New York, says, “… it’s not clear whether those vaccinated people would be able to pass it to others.” We are still in a time of great uncertainty regarding this pandemic.

There is a low risk of infection when socializing with other fully vaccinated individuals; however, most experts believe it will take months to achieve herd immunity as a nation. Herd immunity occurs when a large enough percentage of the population develops long-lasting immunity through naturally occurring infection resistance or vaccinations to a particular virus or disease.

Should you visit your local grandparent or other older relative now that you have the vaccine? Dr. Russo told MarketWatch if both you and your loved one are fully vaccinated, “the benefits of the visit will outweigh these small risks that they could have of developing a severe case of coronavirus.” The unprecedented rates of social isolation of the American elderly have taken a huge toll on their physical, mental, and emotional well-being. If you and your loved one have been fully vaccinated, make arrangements to meet safely.

The medical community speculates that a vaccination rate of 70 to 80 percent can bring about herd immunity in the US, but we are just beginning the nation’s vaccination journey. The advent of open borders and easing air travel restrictions from other countries continues to provide challenges. In the future, you might need to present a negative COVID-19 test to cross international borders. Currently, those Americans returning from Mexico must now meet this requirement before entering the US. The “slow the spread” protocols remain in place even though you are fully vaccinated.

Once you are fully vaccinated your way of life may not change for a while. It is still important to reach out to friends and loved ones who may still be suffering from feelings of isolation and/or depression. You may be able to visit a loved one in a care facility once you are fully vaccinated. And if you haven’t already, now is a great time to think about your future health, and to make sure you have the correct legal documents in place in case you are unable to make decisions due to illness or incapacity in the future. We would be happy to speak to you about what documents you should be thinking about, including a health care directive, living will, or other documents specific to your wishes and desires. If the past year has taught us anything, it is to expect the unexpected and plan accordingly. We can help! If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us at 513-771-2444.