By ALAN S. NOVICK
Scripps Howard News Service
31-OCT-05
Living wills, durable powers of attorney and designations of health care surrogates are all to be considered as part of a complete estate plan.
We are often caught up in tax planning for estates, but we should not forget the importance of planning for incapacity.
Many states have specific statues which authorize living wills, durable powers of attorney and the appointment of agents to make health care decisions. The last is usually called a "health care surrogate."
The living will statute describes the "declaration" which one may make to signify the desire that life-prolonging so-called "heroic measures" shall not be used, or terminated in the event of a terminal illness from which there is no chance of recovery and where such artificial support systems will only prolong the instant of death.
In most state the applicable statute gives any competent adult the power to designate a health care surrogate to make health care decisions for him and to provide informed consent if he is incapable of making health care decisions or providing informed consent. In the usual form, the statute will provide that the surrogate must accept the designation in writing. The designation itself must be written and signed before two witnesses, and at least one of the witnesses must not be his spouse, blood relative, heir or responsible for paying his health care costs. There are further technical requirements that each state spells out and which must be observed.
A living will may also designate a person to make decisions, and it is only common sense to realize that the same person should be designated in both documents, or in the same document. if a combination living will, health care surrogate declaration is used. If separate documents are used then a living will should be used together with the health care surrogate document because the statue may provide that the surrogate may not consent to withholding or terminating life prolonging procedures unless the patient has made a written declaration authorizing the health care surrogate to make such decisions for him, pursuant to the applicable state law.
The third important document in planning for incapacity is the durable power of attorney. The power of attorney may be very broad and may include some medical authorizations. Again, if medical authority is included, it is sensible to avoid giving different persons the same power.
If no medical authority is included, then a different person could reasonably be named to make what would amount to business, property and financial decisions.
All of these documents should be considered in any estate plan for any size estate. They can be more important, and have a greater impact, emotionally and financially, than a will or trust. They are the documents that can, and do, govern the health care and disposition of a person, and his family's health care and financial care while he is still alive, but may not be able to function in a competent manner.
(Attorney Alan S. Novick is a wills, trusts and estates lawyer. E-mail estate planning questions to an304@aol.com.)
