Advanced Directives: Power of Attorney, Living Will, Health Care Surrogate, etc.
When formulating your estate plan, you might want to arrange for more than property distribution. The documents described below are types of advanced directives, documents that provide guidance concerning future financial or medical care in the event that you become incapacitated. These documents can appoint attorneys in fact and healthcare surrogates (discussed below) to decide what you want to happen in certain financial and medical situations. You may instruct your designated decision-makers that you will want to do everything possible to keep your house, or that you want to be treated at a certain hospital, or that you would like to be an organ donor.
Advanced directives are legal documents which clearly state your wishes while you are still able to make such important decisions. When they exist, your designees can worry about carrying out your wishes, instead of carrying the burden of guessing what you might have wanted for yourself.
Durable Power of Attorney
This document allows you (the principal) to designate another person (the attorney in fact) to act on your behalf in financial and legal matters. A “durable” power of attorney specifically has language stating that the powers of the attorney in fact continue notwithstanding the incapacity of the principal. The POA may become effective upon execution of the document, or upon your incapacity (a “springing” POA). Potentially, the longer the POA is in effect, the greater possibility for misuse. Thus, while you may choose to designate one or more people to carry out these responsibilities, it should be someone extremely trustworthy. Who to name is a big decision. You may be tempted to name several persons. While selecting multiple persons may seem like a good method to keep one another in check, this practice can get complicated, especially if the attorneys in fact cannot agree or if a financial institution requires all to be present for transactions. It is probably better practice to name a single attorney in fact, but choose alternates in case the person you designate is unwilling or unable to serve.
Ultimately, the attorney in fact is a fiduciary – they are legally bound to act in the best interests of the principal and a court can hold them accountable for failing to do so. There are also ways to draft the document to lessen the risk of being taken advantage of. For instance, it is a good idea to make the POA as specific as possible and include mechanisms to hold the attorney in fact accountable. A POA that gives blanket authority to conduct “all of my financial affairs” may overstep what you really want – or it might not go far enough. For example, you may intend for your attorney in fact to make reasonable gifts to family members, but the vague statement above probably would not allow that authority.
We would all like to think that if we ever become physically or mentally incapacitated, it will not happen in the near future. In truth, we cannot know when an accident or illness may befall us. Especially if you have taken the time and forethought to have a will, you probably care too much about your property to leave it vulnerable by having a poorly drafted POA. You also probably care too much about your loved ones to expose them to a trying guardianship proceeding because you don’t have a POA.
These drafting considerations make it a good idea to have an attorney draft your POA. In addition to drafting a document that meets your needs and protects your property, an attorney will ensure that the document is properly executed and recorded so that it will be effective for the purposes you desire, even if you move to another state.
A designation of health care surrogate and a living will may be integrated into a single document, but they have distinct functions. While the former selects a person to make medical decisions for you when you are incapacitated, the latter apprises your health care provider of your wishes concerning life-prolonging treatment. The living will is only applicable when you are near death, perhaps long after your health care surrogate has been making decisions on your behalf. According to Kentucky law, the living will is inapplicable until a person has a terminal condition that will result in death within a short time, or is permanently unconscious, meaning they have an absence of brain function. KRS 311.621(16). Either condition must be determined by your attending and one additional physician. Your living will creates a contract with the attending health care provider – he or she has a duty to either honor its instructions or have you transferred to another facility or physician who will carry it out. KRS 311.633.
Having a living will means that your loved ones will never have to be in the painful position of deciding when to let you go. Your spouse or children do not want to have to guess at what you might have wanted – especially because your relatives may have differing ideas about your wishes. When this happens, conflict and resentment inevitably follow. You should make those big decisions yourself and spare your family the discord when they should be free to grieve.
Kentucky law requires a very specific format for a living will so that health care professionals can recognize the form and be confident of its legality. An attorney can draft this important document contemporaneous with the rest of your estate plan and ensure that it is valid.
Designation of Health Care Surrogate
This document, which may be integrated into your living will, gives a chosen person power over your medical decisions when you are no longer able to communicate with your doctor. The surrogate will make routine decisions that are in your best interests. They will also follow directions or guidance provided by advanced directives, such as your living will, and communicate those decisions to the attending physician. This person may be the attorney in fact who has been designated to handle your financial affairs, and it may be someone else entirely.
You may appoint multiple health care surrogates, but it is not advisable. You should choose one person, a close friend or relative whom you trust to carry out your wishes and keep calm in an emergency. Multiple surrogates can disagree and cause confusion for health care providers at a time when swift decisions are crucial, since decisions must be unanimous. KRS 311.623. Be sure that the person you designate is willing to serve – discuss this with them in advance – because if the surrogate refuses to make a decision, a physician has to proceed as if there is no surrogate. KRS 311.629. Like a POA, a designation of health care surrogate should name an alternate, in case the designee is unwilling or unable to perform these duties.
Durable Power of Attorney for Health Care
Since the living will itself has to follow a strict statutory form, its powers are rather limited. First of all, it only kicks in when you are permanently unconscious or terminal. You may lack decisional capacity before reaching these stages. Designating a health care surrogate appoints someone to make medical decisions for you, but does not necessarily give this person the power to do everything needed to carry out your wishes. A durable power of attorney for health care provides the attorney in fact (who may also be your health care surrogate – the person who makes routine decisions) such powers as you choose. You may grant the attorney in fact authority to access your medical records, hire and fire medical personnel, ask for second opinions, choose and change health care facilities, arrange for organ donations, make funeral arrangements, control who visits, grant waivers, sign documents, incur treatments costs in your name, and more. A POA should be carefully tailored to reflect what you want for yourself.
Health Care Directive
Some people feel strongly about the way they wish to be treated while incapacitated. Since your living will won’t kick in until your condition is terminal/permanent, it is advisable to let your surrogate, attorney in fact, family and friends know what you want. Though a power of attorney for health care bestows powers upon an attorney in fact to take care of you, you may wish to have a health care directive to more clearly outline your wishes. This document may be integrated into your power of attorney for health care. While a POA or designation of health care surrogate gives someone the power to make decisions and/or act on your behalf, a precisely drafted health care directive guides those decisions in accordance with your values. For instance, you may detail your opinions on length of life versus quality of life. You may wish to be treated in accord with particular religious beliefs. You may prefer particular health care facilities or professionals to treat you. Perhaps you have strong opinions about narcotic pain medications or the use of feeding tubes. If you feel strongly about these or other issues on which your surrogate or attorney in fact may have to make a quick decision, have an attorney draft a health care directive to guide them.
Frequently Asked Questions
- What happens if I become incapacitated and don’t have any advanced directives?
- Without these documents, if you become incapacitated and cannot manage your affairs, a court may have to conduct a guardianship proceeding. Guardianship is complicated and can be very difficult for your loved ones. In fact, Kentucky requires a jury trial. KRS 387.570. This requirement means that the court system is providing as much protection as possible over your assets, but it also means that the process is very trying. Planning ahead can apprise your friends and family of your wishes if and when you become unable to make decisions. If only medical decisions are at issue, your health care providers will ask your family. If they cannot agree, guardianship may be necessary. Remember, Kentucky law prescribes a list of persons the medical staff will ask to make decisions only when a living will would kick in. You may be unable to make decisions before you are terminally ill or permanently unconscious. Ultimately, a guardian or surrogate is required to make decisions that are in your “best interests.” If you have specific advanced directives, you get to define your “best interests.”
- What should I do with these documents after they are executed?
- Remember to give copies to your attorney in fact, surrogate and health care providers. It is also a good idea to speak to these persons and to your close friends and family about your wishes.
- Can I change these documents after they are executed?
- You should remember to keep these documents up to date by reviewing them periodically. If you have changed your mind, contact your attorney so that these important documents can be redrafted and executed properly. Changes written in to margins or crossed out items probably won’t be effective and will just cause confusion.
- How can I revoke my living will and designation of health care surrogate?
- You make revoke at any time by one of these methods: 1) oral statement of intent to revoke in front of two adult witnesses (one of whom is a health care provider) 2) destroying the document 3) written revocation that is signed and dated. KRS 311.627. The revocation is effective immediately.
- How can I revoke my power of attorney?
- As long as the principal is not incapacitated, he can revoke a power of attorney at any time in writing or by an act demonstrating his intent to revoke. Destroying the original document would qualify as such an act, so it is advisable to get the document back. It is also good practice to inform your agent of the revocation in writing, as well as people you know to have dealt with your agent while acting under power of attorney. Revoking a power of attorney that conveys or releases a property interest is more complicated. Detailed requirements can be found by contacting the county clerk where the property is located. Fayette County Clerk – Power of Attorney.
- Is a Do Not Resuscitate (DNR) order the same as a living will?
- No. A DNR order has a very limited scope – it lets emergency medical services (EMS) know if you want them to try to resuscitate you after you stop breathing or your heart stops beating. According to Kentucky law, such an order must be on a standard form approved by the Kentucky Board of Medical Licensure. KRS 311.623. Such a form and related instructions can be found here: Kentucky Emergency Medical Services Do Not Resuscitate (DNR) Order.
- It seems like being a health care surrogate is a big responsibility. Can I get in trouble for doing something wrong?
- It is a big responsibility. Kentucky law requires you to follow the Kentucky Living Will Directive Act in good faith, KRS 311.621 – 311.643. If you do so, you will not be exposed to civil or criminal liability for making decisions as a surrogate. KRS 311.635. Therefore, it is wise to review this chapter in detail and/or contact an attorney if you have been named as a health care surrogate.
- Are my previously drafted advanced directives still good?
- Maybe. They will not expire. As discussed above, these documents will suit you best if you revisit them every couple of years. However, just as changes to tax laws may have an effect on the potency or advisability of your will, legal developments may impact your advanced directives. Perhaps most notably, people are often concerned that their previously drafted advanced directives will not comport with HIPAA (Health Insurance Portability and Accountability Act of 1996), a federal law aimed at preserving the privacy of personal health information. HIPAA compliance is growing ever more important with the adoption of the HITECH Act (Health Information Technology for Economic and Clinical Health Act). This Act in part increases the potential legal liability for failure to abide by HIPAA – meaning that providers are likely cracking down on compliance.As long as your durable power of attorney for health care is properly drafted, your attorney in fact should not have a problem accessing your medical records. If your attorney in fact has the present power to make all medical decisions for you, he or she will be considered your “personal representative” for purposes of HIPAA. Thus, it is important that your POA go into effect upon execution (not “springing”) and not limit your attorney in fact’s decision-making powers. In short, your “personal representative” is allowed the same access to your personal health information as you are. For more information about HIPAA and your personal health information, visit the U.S. Department of Health & Human Services.
Legal Services Offered and Cost
Drafting of Advanced Directives
Legal fees: $150 flat fee
This includes questionnaires, up to 30 minutes total consultation, and drafting and executing ANY OR ALL of the following:
- Durable Power of Attorney
- Durable Power of Attorney for Health Care with optional Health Care Directive
- Living Will with optional Designation of Health Care Surrogate
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