Living wills and advance directives have lately become the hot topic of discussion with the case of the brain-dead pregnant women in Texas going to the courts to decide. While her individual rights versus Texas state law makes for a heated debate, the real question for most Americans and Canadians should be 'What happens if you don't have a living will and the unthinkable happens?'
Every year, thousands of people have an unfortunate accident that leaves them in an incapacitated state. This is where a living will comes into play. A living will, which can also be known as an advance health care directive or advance directive, is a set of instructions given by you, allowing for what types of medical intervention and treatment you would like to receive, if you are in a state of mind where you cannot make decisions for yourself. If you don't have a living will, you leave these decisions to someone else. So, there by itself, is the number one reason for having a living will. Now let's break down the other 4 major reasons why you should have a living will:
2. Avoid Family Fighting. Imagine what not having a living will could do to your family. If you haven't made the medical decisions that are usually addressed in a living will, depending on your state or province, often times it is left up to your family to make these pain staking decisions for you. Imagine your spouse having to decide whether or not to keep you on life support. Now imagine your mother, or brother, disagreeing with their decision. The emotional toll this can take on a family could be devastating. The case of Terri Schvaio often comes to mind. Back in 1990 she collapsed and fell into a coma for more than two months, and then was declared to be in a vegetative state. Years later, her husband made the decision, against her parents' wishes, to have her removed from a feeding tube. The argument went on for seven years. You can imagine the emotional toll your family would suffer in a similar situation.
3. The Medical Costs. In some cases when a person is incapacitated, the prolonged period of keeping a patient alive can outlast the medical insurance, leaving the extra costs to be paid by the patient's estate. Many times, when the decision is made by the spouse, or other family member, to artificially extend one's life, the medical costs involved can cause an extreme financial burden. It is not unheard of for families to end up losing everything because of this. If you were incapacitated, could you imagine your family losing their home, or possibly facing medical bankruptcy?
4. The Legal Costs. All it takes is for two family members to disagree and here comes the lawyers. This happens in many cases, like Terri Schvaio's, where lawyers for the disagreeing parties spend weeks, months, and even years, arguing for their side, all the while the costs are adding up. And eventually someone will have to pay those bills. Imagine the life insurance you left to protect your family, ending up in the hands of attorneys, all because no one knew what your wishes were. These situations happen all too often. You having a living will can avoid a catastrophe like this.
5. Peace of Mind. Simply put, when you have a living will, you are more likely to have the peace of mind of knowing that your wishes will be known, and that family members won't have to fret over whether or not they made the right decision. It is perhaps one of the most responsible, unselfish acts you can take by keeping the heart wrenching decisions out of the hands of your loved ones. If the unthinkable were to happen to you, there would be no reason to compound your family's suffering.
Now that you have the five major reasons to get your living will, you have to decide what to include in it. There are many points to consider, like if you should appoint a medical power of attorney (POA), where you would designate someone you trust to make decisions that may not have been covered in your living will, or adding a 'do not resuscitate' directive. These are some of the many items you will want to discuss with your family. Also consult your attorney for advice on your state's laws when drafting a living will.
I heard it said that having a will is like writing a final love letter to your loved ones to assure they get everything you want them to have. When you think of it in these terms, a living will would be an extension of that love letter, preventing unnecessary pain and hardships for your family, just in case you were to experience an incapacitated state for any length of time.
Gerard Cassagnol is a professional writer and has written several articles on legal issues of the day. He is an advocate for affordable legal representation and coverage in the USA and Canada. He has had a legal plan membership for over 15 years, and is now a marketer of legal plans and identity theft plans for individuals, families, and small businesses.
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Many people think a living will is not something they need unless they reach senior citizen age. However, this could not be further from the truth and you could end up seriously regretting not taking the time to make one out. Life is unpredictable and often uncontrollable which is enough reason for adults of any age to invest in a life will in order to protect themselves when bad fortune arises. Below are five reasons every adult should take the time to make out a living will no matter how old they are.
1. Protects You When You No Longer Can Communicate
The most advantageous part of having a living will is that it protects you in a future situation in which you no longer can communicate your wishes. If something was to happen the medical professionals in charge of treating you have a big say in what happens to you once you are in a state in which you cannot communicate what you want to be done.
2. Prevents Major Arguments Between Family Members
Having a living will prevents major arguments between family members when the decision is not up to the medical professionals in charge. The other people that have a say in what happens to you are your family members. If they disagree on what should be done with you it can cause relationship ending arguments between members of your family. This is the last thing you want happening during such a tough and difficult time. With a living will it will be your choice and no one else's. This will eliminate any argument or debate as to what should happen to you.
3. Gives You Control Over Medical Treatments/Procedures
A living will also gives you control over what medical treatments and procedures take place in a situation where you are ill to the point of not being able to communicate. In this situation a living will orders doctors to fulfill your wishes in writing. This way you take the decision out of their hands.
4. Reduce Potentially Unwanted Medical Bills for Your Family
In the situation that you get into an coma or vegetative state, a living will decides exactly what is done with you. Many people would rather die than live an additional 20 years on life-support. The reason being is because if they are on life support it will rack up enormous medical bills in which their family will have to pay. If you do not specify this, then your family may be left paying insurmountable medical bills. If you do not want to see something like this happen then you need a living will that specifies exactly what you would like to happen in a given situation.
5. Gives You Peace of Mind
Last of all, making out a living will give you peace of mind. These are designed to give you the control to prevent more bad things from happening in tragic situations. Tragic situations are hard enough and you want to know that your family as well as yourself will be taken care of properly in such a situation.
The last thing you want to do is be lazy and end up giving people outside of your family control over what happens to you under bad circumstances. Get your living will made today. It is so easy to put off but it is probably one of the best decisions you can make.
About the Author
Scott Gray is a writer and website publisher who writes for Morely Levitt. Morley is a will and estate lawyer. His office is located at 120-11181 Voyageur Way, Richmond, B.C. Canada. If you are looking for information about a will in Ladner or Tsawwassen BC Canada, or other areas like Vancouver and Richmond British Columbia, be sure to give him a call at 604-270-9611.
As your parents age, many concerns and needs will arise. One of them being whether or not a conservatorship is appropriate. A conservatorship, also referred to as adult guardianship, is the process of having someone make the necessary medical and financial decisions for your loved one. There are many different things that go into qualifying the need for a conservatorship and establishing an appropriate conservator. Not everyone will need a conservatorship, but for someone who does not have a good Advance Health Care Directive and Power of Attorney in place, it can prove to be very helpful.
An Advance Health Care Directive is a document which lays out the medical wishes of the elder in case he or she becomes incapable of making those decisions. The Power of Attorney is document assigning a person to handle all financial decisions for the elder. There are two different types of conservatorships which can fill in the missing pieces - conservator of the person, and conservator of the estate.
The conservator of the person handles the medical and personal decisions, while the conservator of the estate handles the finances. It is ideal for the conservator of the person to be a relative, and the conservator of the estate should have experience of handled finances, especially if the estate in question is immense or complex. In some cases both aspects may be handled by one person.
There are two things that need to occur for a conservatorship to be considered. First, the elder in question must be physically or mentally incapable of making major decisions. Second, they must not have adequate legal documents stating their preferred personal and financial decisions. Here are some examples:
- They do not have a Power of Attorney for their finances.
- They do not have a medical directive or a living will.
- Even if they do have a medical directive, there may be particular health matters which need to be decided upon and were not mentioned in the directive.
- Even if they have a Power of Attorney for both their medical and financial decisions, they may still need help with personal decisions, such as where to live, etc.
In order to start the process for establishing conservatorship, legal documents must be filed which clearly state the physical and mental condition of the elder in question and why they are incapable of making decisions on their own. Family members and the elder in question must be given time to file their own papers stating whether they support or contest the conservatorship.
Many times relatives involved disagree on who is the appropriate person to carry out the conservatorship. It is advisable to discuss it together, including the elder in question, and come to an agreement before starting the process. This will save much time and money. Also, whoever the agreed upon conservator is should be aware that it is a very time-consuming and even stressful responsibility. The conservator may handle everyday care, how to spend assets on long-term care, deal with Medicare, doctors, insurance, and all other financial, medical, and personal decisions for the elder in need.
In some cases, it can be difficult to determine whether or not there is a diminished capacity of the elder to make decisions. For some, they experience physical or mental limitations, but are not completely incapable of making decisions for themselves. When this happens, a judge may either appoint a court counsellor to talk with the elder, or may speak with them himself.
The judge will weigh all the options, read reports from doctors and family members, ask the elder if they understand the court proceedings, whether or not they even want a conservator, and whether they feel capable of making decisions. After this, the judge may appoint a lawyer to represent the elder during the court proceedings. Otherwise, the judge may appoint a conservator but limit their authority. If this happens, further court hearings may be required to receive the judge's approval on certain decisions.
If you feel that your loved one is loosing their capacity to make decisions, do your homework and discuss options and ideas with other involved relatives to reach a uniform agreement. This will help you save precious time and money before you start the legal process to establish a conservator for your loved one. To find an experienced attorney to help you in these matters, get in touch with the National Academy of Elder Law Attorneys (NAELA) for a referral to one in your area.
Adam J. Roa is the Managing Attorney at Adam J. Roa and Associates located in Towson, MD. His firm has extensive experience handling complex elder law issues and is always excited to take on new and challenging cases. Click on the highlighted link for more information on Maryland Elder Law..
If you’re the parent of a disabled child, you’re probably concerned with the uncertainty of your child’s financial future and the realization that you will not always be around to provide for him.
Facing your own mortality is a difficult concept to come to terms with. There are several scenarios that younger individuals must be aware of that may leave them unable to make their own health care decisions, and thus necessitate a health care proxy.
For example, a college student may suffer from alcohol poisoning and go into shock, you may have a car accident, an eating disorder may cause hospitalization, or you may simply fall from a ladder cleaning leaves from your gutters.
The younger generation should also understand that patients are sometimes diagnosed as being in an irreversible coma, brain dead or living in a persistent vegetative state, all of which may be permanent but not terminal. This means that you could spend the rest of your life on life support. This reality can be emotionally and financially devastating for family and friends.
The importance of having a health care proxy is not just reserved for the elderly. In the wake of the 2005 Terri Schiavo case, we also should remember the 46-year-old firefighter from Easton, Massachusetts, Paul Brophy, and the 25-year-old Missouri woman, Nancy Beth Cruzan. All were under the age of 50, and each case was brought to the national spotlight because of the lack of a health care proxy.
On Dec. 19, 1990 Massachusetts passed a law regarding health care proxies. The law allows you to have a document in which you designate someone to make health care decisions for you in the event that you are incapacitated and unable to make your own decisions. If this does in fact occur, the person you have named will be able to step into your shoes and make decisions for you. A living will is an advanced health care directive that allows you to address your end-of-life decisions, and generally sets forth that you do not want extraordinary medical means used to keep you alive when there is no likelihood that you will recover.
In Massachusetts, living wills are not authorized by statute. However, it is important to have living will language included in your health care proxy, as it provides documentation of your intent with regard to end-of-life decisions. In the event there is ever confusion as to your intentions, the living will language can be used as a guideline by the courts to determine your wishes.
Generally, younger individuals believe they are invincible and a health care proxy is something that only parents or grandparents should think about. What the younger generation does not realize, is that if something should happen, their own values and wishes regarding health care and end-of-life decisions may be compromised if they do not have a health care proxy.
A well-drafted health care proxy contains several features:
First, it clearly identifies the person creating the health care proxy, known as the principal, and the individual named by the principal to make health care decisions, known as the health care agent. In the event that the principal is physically or mentally incompetent and unable to speak for himself, the health care agent will act as an advocate, making decisions as directed by the principal at a time when he was able to speak for himself.
Second, the health care proxy should clearly state your intention to have your health care agent make health care decisions on your behalf.
Third, the health care proxy should describe any limitations that you intend to impose upon the health care agent’s authority. For example, you can provide your health care agent with broad authority or you may limit their authority based on your own religious or moral beliefs. If your wishes are not clear, or if they fail to address the particular circumstance at hand, your health care agent may exercise independent judgment about your medical treatment, taking into account your best interests.
Fourth, you need to indicate that the health care agent’s authority is only effective when you lack the capacity to make your own health care decisions. This language can be tailored to meet your wishes. For example, you can provide that two doctors, independent from each other, must agree as to your lack of capacity to make your own health care decisions before authority is given to your health care agent.
Lastly, the health care proxy should include living will language, which indicates your wishes regarding your end-of-life decisions. This language should also include your wishes for not only a terminal diagnosis, but also a non-terminal diagnosis that may leave you in a persistent vegetative state. In addition, the health care proxy should designate when these life-ending measures become effective.
An additional factor to consider is the significance of sharing your desires with your health care agent by communicating them ahead of time. It is logical to assume that the designated person will be someone close to you, who will be under tremendous emotional stress when you are gravely ill or injured. Your health care agent will have the legal right to make health decisions for you, so he or she should be capable of respecting your wishes despite the weight of those decisions.
A well-drafted health care proxy can provide you with the assurance that your health care decisions are based on your own values and wishes. A significant lesson to take from the Brophy, Cruzan, and Shiavo cases is that people are not invincible, regardless of their age. Hopefully, you will never need to use your health care proxy, but in the unfortunate event that you do, it will ensure that your wishes are respected.
Attorney Brett Kaufman is a partner in the law firm of Schlossberg, LLC, with offices in Braintree, Massachusetts. Mr. Kaufman is a member of the Firm's Trusts and Estates Department. He concentrates his practice in the area of tax, estate planning, and estate administration. You may contact Attorney Kaufman at (781) 848-5028..
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