At the age of 25 years old, Terri Schiavo suffered heart failure that lead to brain damage due to a lack of oxygen. Terri’s husband, Michael, was appointed as Guardian of the Person in 1990. When seeking permission from the Court to terminate the life support, Michael began a 15 year journey through numerous courts in the country to determine the outcome. Citing a “persistent vegetative state,” the Florida Court directed the feeding tube be removed in 2005.
After 15 years of litigation, and after seeing evidence of a “worst-case scenario,” remarkably only 20%-30% of Americans have Advance Directives in place.
While the paperwork is vital, especially when family members disagree, family discussion can be even more important. Advance Directives should be part of a broader discussion, including how do you want to be cared for and by whom, where do you want to live and what do you want out of your final years?
Planning ahead for your own disability is a difficult step to take because no one wants to believe it can happen to them. It can happen, and with proper planning you will be confident that you are protecting what really matters. Marybeth Kadus, attorney for Strohschein Law Group, was recently interviewed by the Chicago Tribune on this subject and the article below is a testament as to why you should be prepared for the unexpected.
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ChicagoTribune.com Special Advertising Section
Creating durable powers of attorney gives peace of mind
10:24 AM CDT, June 7, 2013
If you are incapacitated in a serious accident or as the result of a medical emergency, will your wishes regarding important health care and financial decisions be honored?
They will be if you have created durable powers of attorney.
Powers of attorney are legal documents in which you give instructions to a person, known as the agent, as to how you want the agent to act on your behalf. Powers of attorney are typically designed to give authority on health care and financial matters.
Durable powers of attorney enable your agents to make decisions for you if you can’t, Sally Hurme, senior project manager with AARP Education and Outreach in Washington, D.C., says.
In Illinois, the documents are referred to as power of attorney for property and power of attorney for health care, says Jonathan W. Michael, partner in the Chicago law firm of Burke Warren Mackay & Serritella P.C.
With durable power of attorney for health care, you are designating to an agent the ability to make decisions that in Illinois can include an organ donation, granting an autopsy, or making end of life determinations, such as being taken off a ventilator, he says.
Married as well as non-married people should have powers of attorney, Michael reports. Without a power of attorney for property, a separate court proceeding would be required to appoint an individual to act on behalf of the incapacitated person and make decisions regarding his or her property. That can be very expensive, and may result in the incapacitated person not being represented by the individual he or she would prefer to make decisions on his or her behalf. If both spouses were simultaneously incapacitated, without a power of attorney for property, two separate court proceedings would be required, one for each spouse, to make decisions for each spouse. Typically, a married person would name the spouse initial agent and another person successor agent, he said.
As an individual 50 years and older, you should have powers of attorney created. But so should your adult children. “We have recommended powers of attorney for people as young as 18,” says Marybeth Kadus, attorney with Strohschein Law Group in St. Charles.
Setting up powers of attorney
Meeting with an attorney to create powers of attorney is recommended, particularly in the case of power governing property, Hurme says. However, there are power of attorney for health care forms you can access to create your own documents. One site to visit for the health care power of attorney form is to www.aarp.org/advancedirectives.
“In the case of financial power of attorney, we don’t recommend pulling a form off the Internet,” Hurme says. “The reason is that we’re concerned about the misuse of power of attorney. You have to be very careful about who you select as you agent, because you are delegating the potential for substantial control over your money.”
It is recommended that an individual establishing power of attorney designate at least two people, an initial agent and a successor agent, to act on her behalf, Michael says. The successor agent is called on to make decisions if the initial agent cannot.
“Acting as an agent confers considerable responsibility,” Michael says.
For instance, anyone acting as an agent is expected to account for all receipts, disbursements and significant actions undertaken on behalf of the principal while the principal is incapacitated, so there is accountability to the principal.
It’s not uncommon for those creating durable powers of attorney to designate different people to take on the property power and the health care power, based on the unique skill sets each possesses, Hurme says.
A financial power of attorney is often bundled with writing a will and the entire estate planning package, Hurme says. Along with creating or updating a will and creating power of attorney for property, an attorney consulted may additionally bundle health care power.
The most important of all these documents are powers of attorney. “People will come in for an estate planning consultation, and even if they don’t walk out with an estate plan, they should walk out the door with powers of attorney,” Kadus says.
Powers of attorney should be updated regularly to make sure your agents are still at the same addresses, and to make sure you still have the same kind of relationship with them.”
Where to keep the documents
Because durable powers of attorney will be essential documents in the event of the principal’s incapacitation, it’s important they be kept in the right places.
Kadus recommends keeping the health care power of attorney with the principal’s doctor and with the initial agent. If the agent does not have the document, he or she should know how to contact the principal’s attorney. “A copy of the property power of attorney will be with your lawyer, and could also be in a bank lock box or fireproof home safe,” she says.
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If you would like to learn more about the basics of estate planning, including advanced directives, join us for our 3 part series this July –
EP University for the Sandwich Generation
The sandwich generation is challenged with balancing the needs of their growing children, aging parents, and personal plans for retirement. If you feel like the cheese in a good sub sandwich – you are not alone. Join us for this 3 part series and learn the legal and financial steps you should consider when juggling these life transitions.
July 16th: Estate Planning Basics – Including Advanced Directives
July 23rd: Balancing Life Transitions
July 30th: Navigating Financial Needs
All of the topics will be hosted as FREE Lunch & Learn workshops for you to gather information, get questions answered, and pave your path to protect what matters!