Advance Medical Directives

“It’s a good thing your dad died quickly,” Alice told her son. “He wasn’t stuck on those machines like a vegetable. I don’t want that either. Pull the plug, you hear?”

This is not a sweet "Hallmark" moment, but it does let you know this woman's basic wish concerning life-sustaining measures. More effective--and carrying legal force--is a document called Advance Medical Directives (AMD). Along with the Durable Power of Attorney, the AMD is an important tool in information gathering and in caregiving.

What Are Advance Medical Directives?
Each person has the right to accept or refuse medical treatment. Advance Medical Directives, or simply Advance Directives, protect that right if a person ever becomes mentally or physically unable to communicate his wishes due to serious illness or injury.

The Advance Directives state clearly what life-sustaining measures a person wishes the doctors and nurses to take on his behalf. The Directives:
• Protect a person in extreme conditions such as brain damage, permanent coma or terminal illness when he is unable to communicate; and
• Limit life-prolonging measures when there is little or no chance of recovery.

In most states, law now requires that a statement of Advance Directives be on file for each resident or patient in a hospital or nursing home. Also, each state may use a different document, such as a living will, a medical/durable power of attorney or a general statement. Consult legal counsel in the state in which the Advance Directives will be used.

What Types of Decisions Might You, As Caregiver, Need To Make?
The woman’s off-handed comment above to “pull the plug” actually may mean making a number of decisions concerning:

• The use of Cardiopulmonary Resuscitation (CPR) to revive her;
• The use of a respirator (a machine to mechanically work her lungs) to keep her breathing;
• When and if to treat infections that, if untreated, would shorten her life;
• The use of feeding tubes to provide nutrition if she could not eat normally;
• Providing appropriate pain relief;
• When and if to use dialysis to clean her blood by machine if her kidneys no longer functioned; and
• Organ donation (specific organs or entire body).

For each of these situations, the health professionals will look to you, as caregiver and decision maker, as well as the AMD for guidance if your parent is unable to express her own wishes.

Perhaps, due to current circumstances, you feel that you won’t have to make these decisions for your parent, but life happens, circumstances change, and you may find yourself responsible for important emergency or end-of-life decisions. Prepare now.

Know What Each Procedure Involves
Each of the life-sustaining measures noted above has many variations and intensities of treatment. While making decisions and preparing the Advance Directives, if you are unfamiliar with a procedure or don't understand the language describing the procedure, consult a physician before completing the Directives.

Implications
According to a recent study, only 27 percent of adults have Advance Directives in place. This means that most people, when faced with end-of-life decisions, have no guidance, may be guessing about the patient's wishes and may decide based on their own preferences, not those of the patient. Take the guesswork out--for you and your parent--by having Advance Medical Directives in place. In other studies, stress levels for the family making end-of-life decisions were significantly reduced when Advance Directives were in place. The family could concentrate on the person's quality of life and be guided by her own wishes in the decision to stop life-sustaining treatments. Suffering is not needlessly prolonged. There is less agonizing over a decision; your parent has already told you, in writing, what to do.

This is one of the most powerful ways you can honor your parent. Honor her wishes on the manner in which she wants to live and die.

Do Not Hurry
Because numerous procedures and treatments are discussed in the AMD, be prepared to spend some time compiling this document. You or your parent may not be writing the document yourself (although you can), but deciding what options would be best under what circumstances may take some time. If you are helping your parent with decisions and information, the discussions may carry over several sessions. Do not hurry the process; these are some of the most important decisions your parent--and you--will ever make.

In my next regular post, I'll provide more tips and suggestions for the Advance Medical Directives. Until then, Blessings on your caregiving day!

Final Thoughts on the Durable POA

We've been discussing the durable Power of Attorney over the last several posts. Let's wrap up with a few final suggestions.

• Talk to your parent about a Durable POA now (or Living Will, Living Trust). Stress that this does not give you immediate control--but transfers control only when he gives you control, when he is incapacitated, or when trusted professionals give you control. Reassure him that you want the best care for him.
• If your parent avoids the issue, try asking the people on your contact list to help. Perhaps one of them can persuade your parent to take this important step.
• Tell your parent that you are arranging for your own Durable POA (and you should!) and would like to know what he wants, or to help him arrange his.
• Be involved in drafting the POA. Share the tips from this Blog with your parent.
• If your parent worries about putting too much control into one person's hands, suggest that two documents be prepared: a POA for financial affairs and a POA for medical affairs. You can be one agent; perhaps another sibling or relative can be the other. This separates the control and may make your parent feel more comfortable.
  
  Suggest that two agents be named if your parent feels that checks and balances are needed. Be careful of the wording. If the POA names you AND another, then BOTH people must sign documents or give verbal permission for procedures. This can unnecessarily delay care if either of you is unavailable. In my mother's document, my sister and I were named so that EITHER of us could act. We could work independently and quickly when a need arose, but were expected to consult each other.

Is the POA the Only Way To Become an Agent for Your Parent?.
There are other legal ways to become an agent for your parent.

• You can add your name to your parent’s bank accounts and safe deposit box.
• Your parent may have a Living Trust, which will cover the financial issues and help you avoid probate. Your parent may also have a Living Will, which will generally cover the health care issues. These are good arrangements to have, but can be complicated to set up. Your parents may balk at the involved process.
• You can apply for legal guardianship before your parent is mentally incompetent. This is a long and distressing court process which your attorney will probably advise you to avoid. However, once your parent has been declared mentally incapacitated (according to state regulations), gaining legal guardianship is a fairly straightforward process. You may want to wait until incapacity is certain.

The DURABLE POA, signed and recorded while your parent is still mentally alert, is a straightforward document and versatile. It lets you take over when the need is the greatest and goes into effect only when the attorney and the doctors--and your parent, if able--agree. If your parent's condition improves, the POA is no longer in force and your parent takes over his affairs again.

What If My Parent Won't Do This?
Your parent is an adult. The truth is that if your parent is over 21 and mentally alert, she has the right to arrange her affairs in any way she wishes no matter how inconvenient and stubborn it may seem to you. Do what you can, be gently persistent, look for another opportunity to bring the subject up. Use this Blog, the Parentcare 101 Website, and the books in the Parentcare 101 Booklist to prepare yourself in other ways. As I did, you may get the opportunity when the first crisis hits.

Resources to Read More
Haman, Edward A. The Power of Attorney Handbook. Clearwater, FL: Sphinx Publishing, 2006.

Schumacher, Vickie. Understanding Living Trusts: How You Can Avoid Probate, Save Taxes and Enjoy Peace of Mind. 5th ed. Schumacher Publishing, 2003.

**You can request these articles from your public library:
Hochberg, R. Mark. Underpowered? Anything less than full power of attorney could keep your agent from doing the right thing if you’re incapacitated. Financial World, v 164, n20, p78, 9/26/95.

Jamison, Judith J. Are your powers in place? Best’s Review--Life-Health Insurance Edition, v 98, n11, p90, March 1998.

What's In the Durable POA?

We've been talking about the durable Power of Attorney, one of the most important documents that you'll need as a caregiver.

Different laws exist in each state regulating such documents so your parent’s attorney (at least an attorney in the state in which your parent resides) can draft a basic document. From experience I learned that there are some things that must be included:

1. The POA should be DURABLE. This means that it goes into effect when your parent is considered incapacitated, and your role will last until your parent’s death or until he regains competency. "Competency" has a legal definition in each state and criteria for passing control to you. For my mother, her personal physician and her attorney had to verify that she could not take care of her affairs.

2. The POA should include specific financial items. Every POA includes standard language that describes the types of finances for which you will be responsible. In addition, whether you know your parent’s financial holdings or not, be sure that every type of asset or investment is covered.
• Add wording for investments such as stocks, bonds, REITS and mutual funds. Without wording that gives you access, most investment houses and brokerage firms will not permit you to work with your parent’s investment accounts.
• Also insure that you have access to the safe deposit box (especially if your name is not on the box with your parents). Additionally, find the box keys and have them available. There are two keys for each box.

3. The POA should cover Health Care. States are adopting standard language for this. What you want is the right to admit your parent to a hospital (no, it’s not automatic) and to make decisions on all care. In this document can be included a statement of Advance Medical Directives (we'll get to this in a future post) although most health care facilities will also want the Medical Directives in a separate document to attach to your parent’s chart.

Even with specific wording in place, be prepared to obtain a notarized attorney’s statement for some brokerage houses and investment firms. If your parent is receiving Social Security checks and you‘ll handle that money, you will need to apply with the Social Security Administration to be the “designated payee”. But the DURABLE POA will smooth the path with these organizations and clearly state your parent’s intent in the matter.

Some Important Tips

• Once you have the signed Durable POA, keep the original safe and make plenty of clean copies. You will need to file a copy of it with each organization when you are representing your parent.
• Find a Notary Public near to your work or home. You may need to send notarized copies of the POA. The Notary will also be used for other documents as you manage your parent's affairs.
• DO NOT give the original POA to any of the various organizations that will need a copy (such as banks, the hospital, etc.), even if they plead and threaten. Explain your limitations. Send a copy. A copy is acceptable if you are firm about it; suggest a notarized copy.
  
  I had only one original in my possession, signed with great emotion. In only one instance did I agree to hand over the original--to an investment firm who would not budge—but we agreed that I would send it registered mail with a return envelope to be mailed immediately back.

I'll finish next time with some final suggestions for the POA and talking with your parents about this important planning tool.

Until then, blessings on your caregiving day!

The DURABLE Power of Attorney (POA)

As soon as you have noticed that your parent may become disabled in the near future (see your Reality Checklist), your next priority should be a DURABLE Power of Attorney (POA). This legal document allows you to act as your parent’s agent in all matters. If your parent is anything like my Mom, when you approach the subject, you might get responses like:

(1) I’m perfectly capable of handling my own affairs, and I’d rather keep control.
(2) I don’t want to talk about it. How dare you even mention such a depressing subject!
(3) Oh, don’t worry. I have a will in place. I intend to die on my feet (at my job, in my sleep, etc.)

And that was the end of that discussion.

What Does This Document Do For You?
Every practical discussion of eldercare stresses the importance of having some document in place that will permit you to take over if your parent becomes incapacitated. I lend my voice to these authors. Why? Because it’s crucial.

The DURABLE POA, written properly, permits you to:
• Write checks
• Manage your parent’s household
• Admit your parent to a hospital
• Make decisions about his medical care
• Access the safe deposit box, and carry out a host of other daily household activities
• Rent or sell your parent’s house
• Manage financial investments.

In short, it permits you to make decisions that your parent would make himself if he were able.

My Experience
It was in the Spring that my sister and I recognized that our mother's mental condition was failing. We began to gather information and knew about Power of Attorney documents, but did not make the connection to our situation until the Fall and Mom's emergency admittance to the hospital. When I arrived at the hospital, I watched in distress as Mom tried to pack for a trip that we had taken long ago and directed me to find things in the hospital room chest of drawers that clearly would not be there. Her physician was certain that she had normal pressure hydrocephalus, a condition in which spinal fluid backs up into the brain causing damage, hallucinations and dementia. There were tests to perform and treatments he would try; there was a good chance she would recover her mental facility. But that might take as long as a year. For now, Mom needed help to make medical decisions, maintain the house and deal with her finances. I needed a POA.

I called my sister and Mom's attorney. By the next day, the attorney had a document prepared that we could use for both financial and medical decisions. Knowing my mother's efforts to be fair to both her children, the attorney suggested that my sister and I both be named as agents with an "either/or" wording. We could act independently but were expected to consult one another. Then he encouraged me to get it signed any way that I could.

I called the social worker at the hospital who said that Mom was actually lucid in the morning--between 10 and 11 was best. This morning improvement in thinking is common in dementia patients. The social worker agreed to be a witness for the document signing. I entered Mom's hospital room trembling with anxiety. If she really did not understand the document, then we would have to try other, more complicated options. If Mom got stubborn about something in the document and did not sign (as she had done in the past for other things), then we would not be able to help. Long, shaking minutes passed while Mom read the document and asked questions. I silently thanked God and everything divine that she understood what the document was and what its conditions were. Once assured that my sister and I held equal authority and that her attorney (a long-time friend) was in favor, she accepted the help of the social worker to hold her arthritic hand steady and signed her name.

If there is any way that you can avoid this kind of situation with your parent, believe me, you want to.

We'll talk about the POA over several posts, because it is one of the most important documents in caregiving. It will help your parent. Even more, it will help you.

Until next time, blessings on your caregiving!

Talk With an Eldercare Attorney

The physician examined Jeff’s father and diagnosed mild dementia. “I had plenty of medical questions,” Jeff said, “but I had legal ones, too. Like who is liable if Dad causes injury or damage through his actions? I’d like to sell the house, but Dad is resisting. Do I need legal guardianship? What are alternatives to this process? Dad doesn’t have a will. What does that mean in the long run?”

In your plan to gather information, an important source is an attorney who specializes in elderlaw or is familiar with the laws and regulations as they relate to seniors in the state in which your parent resides. Because state laws concerning eldercare, senior rights, facilities certification and property ownership differ significantly between states, it is vital to speak with a lawyer in the state of your parent’s residence, not yours. The attorney is one of your parent's care team but may become a source of advice for you in your role as caregiver.

In general, eldercare law is defined by the age of the clients served and by those professionals who specialize in laws and regulations concerning seniors. Your parent's current attorney may be able to fill this role if he is well versed in state regulations and law for this area.

Topics With Which an Eldercare Attorney Can Help
In addition to legal issues that concern younger people, advancing age brings with it new areas in which to learn, explore options and make decisions. An attorney familiar with elderlaw can advise in the following areas:
• Financial and Estate Planning
Estate planning includes the management of a person’s financial assets during the person's lifetime and planning how the estate will be divided upon the person's death through wills, trusts, asset transfers, tax planning, and other methods.
• Planning for Possible Incapacity
In this area, the senior chooses in advance how health care and financial decisions will be made if he is unable to do so. Legal document which might apply include durable powers of attorney, health-care powers of attorney, an Advance Medical Directives statement, living wills, and other means of delegating the decision making. The attorney may also be able to advise on conservatorship and guardianship proceedings in the event that your elder has not planned for incapacity. I'll touch on some of these in future posts.
• Long-term Care Planning
Long-term care issues such as quality of care, admissions contracts, prevention of spousal impoverishment, and resident's rights. It also includes life care or retirement community issues such as evaluating the proposed plan/contract.
• Retirement and Pension Plans
Counseling regarding Social Security and navigating the system (retirement, disability and survivors' benefits) and other public pensions (veterans, civil service) and benefits as well as private pension benefits.
• Insurance Coverage
Medicare, Medicaid, Medigap insurance, and long-term care insurance.
• Housing issues:
Home equity conversion and age discrimination. Buying and selling property.
• Age discrimination issues
The attorney may bring cases under the Age Discrimination in Employment Act.

The Costs, The Benefits
Consulting an attorney is not inexpensive, but one or two visits may be all that is needed to set you and your parent on the right track. When you think of the cost, also think of the costs to yourself if you don’t consult a professional:
• Consulting an attorney reduces your research time in legal matters. Your time is valuable.
• The attorney can act as a sounding board for your ideas and can determine the legality and legal consequences of what you'd like to do. This will help you avoid legal pitfalls that, in the long run, may cost much more money than the initial consultation.
• Speaking with an attorney about the concerns you have will often make you feel better, give you a feeling of having a little more control and being prepared. Peace of mind is a valuable commodity.

Finally, remember that this is a relatively new area of law and the attorney you choose may not be familiar with all the topics described above. Find out what her area of expertise is and if she is not qualified to give you complete answers, ask her to refer you to someone who can.

Blessings on your day!