Part One – Durable Power of Attorney for Health Care
BY: Neil L. Wojtal
While you are living and healthy, you value being able to make your own decisions about your finances, property, health care, and raising your children. Should you die or become incapacitated, you hope others will handle these matters for you according to your wishes.
The only way to assure that will happen is through estate planning. There are three primary Estate Plan Documents that everyone should have in place. The three primary Estate Plan Documents are: 1) a Durable Power of Attorney for Health Care - so someone can make health care decisions for you if you are not capable of doing so; 2) a Durable Power of Attorney for Finances and Property - so someone can make financial decisions for you if you are not capable of doing so; and 3) a Will directing the distribution of your Assets consistent with your desires and Estate Plan.
DURABLE POWER OF ATTORNEY FOR HEALTH CARE
A Durable Power of Attorney for Health Care (Durable POA for Health Care) authorizes another person to make health care decisions for you when you are unable to make such decisions for yourself. There is a state form contained in the Wisconsin State Statutes (Section 155.30) that you can use or you can have the power of attorney created for you by an attorney. Note that while the state form is legally acceptable it is a "one size fits all" form. It does not address any specific wishes you may have concerning your treatment in the event you are unable to communicate with your doctors. A Durable POA for Health Care can be effective immediately upon signing or it can become effective only after two physicians state in writing that you are incapable of making your own decisions. If you do not have a Durable POA for Health Care in place when you become incapacitated, no one will have the authority to speak for you concerning any decision regarding your continuing care. No one will be able to decide if extraordinary measures should be taken by your doctors to prolong your life if, for example, you are considered brain dead. Any such decision will then have to be made by a court after hearing testimony from your doctors. This is a time consuming and expensive process that will create stress for your loved ones since they are helpless to proceed without legal action since your specific wishes are not contained in a written document.
You only have to look at the Terri Schiavo case to see an example of a legal battle that lasted 7 years at great cost and family stress by all the involved parties. Ms. Schiavo was declared brain dead by her doctors and her husband, as her legal guardian, asked that her feeding tubes be disconnected allowing her to die. Ms. Schiavo's parents insisted that she be kept alive in the hopes that she would someday recover some use of her brain and based upon her religious beliefs. The battle between her husband and her parents resulted in 14 appeals, and numerous motions, petitions and hearings in the Floridacourts; five suits filed in federal district court; Florida legislation struck down by the Florida Supreme Court; a subpoena by a congressional committee to qualify Schiavo for witness protection; federal legislation and four denials of certiorari from the U. S. Supreme Court. While this case is an extreme example, all of this litigation could have been avoided had Ms. Schiavo completed a Durable POA for Health Care with specific instructions as to the use of extraordinary life saving efforts such as feeding tubes in the event her doctors declared her brain dead. A detailed Durable POA for Health Care will contain these instructions and appoint a person who has the power to carry out your wishes.
Note that a Durable POA for Health Care is not the same as a Living Will. A Living Will is a separate document, not a part of your Will. A Durable Power of Attorney for Health Care allows your agent to make health care decisions for you. A Living Will allows you to state in writing your preferences about life prolonging medical treatment. A Living Will only takes effect when you become incapacitated, cannot speak for yourself and there is no hope for recovery. A Durable POA for Health Care will cover the same scenarios as a Living Will but, if you elect to have it effective immediately upon signing, it will also cover any instances where you may be temporarily incapacitated such as a medically induced coma for instance. The standard form for the Living Will is located in the Wisconsin State Statutes in Section 154.03. Again, while this form is legally adequate, it does not provide your detailed instructions for various scenarios. A Durable POA for Health Care drafted by an experienced attorney will detail your wishes regarding several scenarios and give specific instructions as to what extraordinary measures you want to be taken by your doctors to prolong your life in the event of a life ending scenario or a temporary condition where you are unable to speak for yourself.
To Be Continued - Durable Power of Attorney for Finances and Property
This blog is designed for general information purposes only and should not be construed to be formal legal advice. You should consult an attorney for advice regarding your own situation. Although great care has been taken to ensure the accuracy and utility of the information contained in this blog, no warranty is made, express or implied, and Zimmerman & Steber Legal Group, LLC assumes no liability in connection with any use or result from use of the information contained herein.