by Thomas D. Begley, Jr., Esquire, CELA

A Health Care Power of Attorney simply appoints a Health Care Representative to make medical decisions without giving any direction to the representative. The Advance Directive gives instructions for end-of-life decision-making. A Health Care Power of Attorney can be combined with an Advance Directive/Living Will. There are essentially four choices:

1. Terminate Life. This provision would instruct the health care providers to terminate life, if there was no reasonable hope of recovery or regaining a meaningful quality of life. The state Living Will statute spells out conditions that must be met before life can be terminated.

2. Treat Aggressively. Some people do not want to entrust end-of-life decision-making to others. They feel that no matter how hopeless the situation may appear, they could improve. For these people the “treat aggressively” option makes sense. The Health Care Provider is directed to treat the individual aggressively no matter how hopeless the situation, and the Health Care Representative is not authorized to override these instructions in the document.

3. Medical Power of Attorney Only. Some people do not feel comfortable in thinking about end-of-life decision-making. They would rather let someone else make that decision when the time comes. A Medical Power of Attorney appoints the Health Care Representative and leaves the end-of-life decision-making to that individual.

4. Court Appoints Guardian. Ignore the problem, do not sign a Health Care Power of Attorney or Advance Directive, and have a guardian appointed by a court to make medical decisions.

The first three options make sense, the fourth option does not.

Choosing a Health Care Representative is not easy. A married couple typically selects their spouse. Individuals also tend to select children. The appointment of a Health Care Representative puts a heavy burden on that person. No one looks forward to terminating the life of a loved one. Some people would find it very difficult to implement the individual’s decision to terminate life. In selecting a Health Care Representative, the personality of the proposed Representative should be considered.

It is also possible to include a consultation clause in the document whereby an individual appoints a Health Care Representative and instructs that Representative to consult with others prior to making a final decision. Avoid selecting two or more individuals as Health Care Representative. If there are two people, there could be conflict at the time a final decision is to be made. Appoint one person and have them consult with the other, but give the person originally appointed the right to make the final decision after consultation.

by Thomas D. Begley, Jr., CELA

Background on Alzheimer’s

According to the American Alzheimer’s Association, Alzheimer’s disease is a progressive brain disorder that damages and eventually destroys brain cells, leading to memory loss and changes in thinking and other brain functions. It usually develops slowly and gradually gets worse as brain function declines and brain cells eventually wither and die. Ultimately, Alzheimer’s is fatal and currently, there is no cure. An estimated 5.3 million Americans of all ages have Alzheimer’s disease in 2015. Thirty-six percent are age 85 or older, 43% are between 75 and 84, 16% are between 65 and 74, and 4% are under age 65.

Once an individual is diagnosed with early Alzheimer’s, what steps should be taken?

Estate Planning Documents

Assuming the client still has mental capacity, the first step would be to review any existing estate planning documents and bring them up to date, or if there are no such documents, to put them in place. These documents include the following:

• Wills are designed to transfer property on death. In most states, the requirements to make a Will are that the individual must be 18 years of age or older and of sound mind. This is why it is important to make a Will before the individual diagnosed with Alzheimer’s deteriorates.

• Living Trust. A revocable Living Trust is designed to avoid probate on the death of the individual. If the individual owns real estate in more than one state, the real estate can be transferred to a Living Trust to avoid probate in multiple states.

• Living Will and Health Care Power of Attorney. A Health Care Power of Attorney simply appoints a Health Care Representative to make medical decisions without giving any direction to the representative. A Health Care Power of Attorney can be combined with an Advance Directive/Living Will. The Advance Directive gives instructions for end-of-life decision-making. There are essentially four choices: (1) terminate life; (2) treat aggressively; (3) Medical Power of Attorney; or (4) ignore the problem and have a guardian appointed by a court to make medical decisions. The first three options make sense, the fourth option does not.

• Financial Power of Attorney. The Financial Power of Attorney is also known as a General Durable Power of Attorney. The principal designates an individual to serve as an Agent to transact financial decisions on the individual’s behalf.