Discussing end of life planning with clients is a difficult, but necessary, topic for any practitioners involved in estate planning. This is particularly true if a client is facing a life-threatening illness. Decisions regarding end of life care are deeply personal, and clients should talk to loved ones, health care providers, and advisors regarding their wishes, as this is crucial to ensuring those desires are carried out. If a client does the appropriate planning, they will be able to focus on spending time with loved ones rather than dealing with unexpected issues.
Powers of Attorney and Living Wills
The existence of a durable power of attorney can often mean that relatives will not have to institute guardianship proceedings (also called “conservatorship” in some states) if the individual becomes incapacitated, as durable powers of attorney will continue even if the individual is incapacitated. A person with a durable power of attorney (the “agent”) can act on the behalf of the individual (the “principal”) in legal and financial matters and can perform all acts incidental to or necessary for the performance of the power of attorney.
The power of attorney will terminate upon the death or completion of guardianship proceedings of the principal. The principal may terminate the power of attorney at any time unless the parties agreed to its irrevocability. The agent may terminate the power of attorney by notifying the principal of the agent’s resignation. At the termination of the power of attorney, the agent has an obligation to account for their performance to the principal unless the duty to account has been expressly dispensed with by the principal.
Some clients may be uncomfortable giving such broad authority to one or more individuals if it’s immediately effective upon execution. It’s not uncommon to have clients ask to have the power of attorney be a “springing” power. A springing power of attorney is one that becomes effective upon the occurrence of a condition, such as the principal’s incapacity. Many difficulties can arise when using springing powers of attorney, the most obvious being how to define and confirm incapacity. One common method of proving the principal is incapacitated is to require that certification by two physicians. A springing power of attorney also presents difficulties when the agent attempts to use the power of attorney, since the agent will have to prove to third parties that the principal is incapacitated.
It’s advisable to have more than one agent acting as power of attorney for the principal. The reasoning is that if one agent is unavailable, incapacitated, or predeceases the principal, another individual can act as the agent. Clients may have concerns regarding naming someone other than their spouse as an agent, as the possibility of conflict increases when more than one person is authorized to act on behalf of the principal. The question is also whether multiple agents should be required to act jointly, or whether they should be allowed to act independently. Requiring joint action complicates the actual use of the power of attorney, since two signatures will be required. However, naming more than one agent, especially if those agents are children of the principal, may reduce family conflict since both agents will have access to financial information. The agents are also less likely to abuse the power of attorney if another agent is looking over their shoulder.
Some financial institutions are reluctant to accept powers of attorney prepared by someone other than their own legal department. The practitioner should advise their client to contact their financial institution and confirm that the power of attorney prepared by the practitioner will be accepted by the financial institution.
Clients should be advised to place the power of attorney with other important legal documents (or give them to the agent), but should not place the power of attorney in a safety deposit box as the agent will need the power of attorney to enter the safety deposit box.
Medical Power of Attorney
While the power of attorney discussed above can include the power to make medical decisions on behalf of the principal, often the medical power of attorney is a separate document.
The medical power of attorney specifies the individuals the principal wishes to make their health care decisions in the event the principal is unable to make those decisions. If the principal wants to name more than one person as the agent, the drafter should consider how conflicts between the two (or more) agents will be resolved. It is advisable to name one person whose decisions will be binding on health care professionals in the event of conflict among the agents. Unlike the durable power of attorney, the medical power of attorney can only be used when the principal is incapacitated. The issues around “springing” powers of attorney do not apply with medical powers of attorney, since the incapacity of the principal is easily ascertained by medical staff.
The medical power of attorney can be a blanket statement giving the agent the ability to act on the behalf of the principal for all medical decisions, but the medical power of attorney can also address the principal’s desires in specific medical situations. For example, one of the most difficult decisions for an agent to make is whether to consent to a “Do Not Resuscitate” order. Preferably, the principal will have considered this question before incapacity and stated their decision so that the children or spouse cannot contradict the principal’s desires.
Living Will
A living will is a document expressing the client’s desires regarding continuing medical care in the event the client is in a permanent and irreversible coma. The decision to terminate life support is particularly difficult. The decision to terminate life support also includes the decision to terminate hydration and nutrition through the removal of a feeding tube. As wrenching as these decisions are, if the client has expressed their wishes in a living will, the family will be able to effect the decision knowing that they are acting in accordance with their loved one’s wishes.
General Advice
Each end of life planning discussion is different. The conversation with a young, healthy client is very different from a conversation with a client who has received a terminal diagnosis.
When a client has received a terminal diagnosis, or has a life-threatening illness, the practitioner’s first job is to review all documents currently in place to see if they still conform to the client’s wishes. If the client is either new or new documents must be drafted, care must be taken to execute them while the client still retains capacity and is not adversely impacted by medications.
The client or the client’s family should also start to gather important documents and information regarding the client’s assets and debts. These documents will be invaluable when the succession is opened. The client or family should get information regarding all financial assets including bank accounts, life insurance, retirement accounts, annuities, pensions, real estate descriptions, and all debts.
About the Author
Laura Fine is a partner at Lehmann Norman & Marcus, LC, in New Orleans, focusing on estate planning, estate administration, and business law. Contact her at laura@lnmlaw.com.