The Durable Power of Attorney – Part 1 (May 2012)

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Sanford Okura
on May 3, 2012
in Estate Planning and Powers of Attorney and Health Care Directives
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Every adult should have a Durable Power of Attorney.  A “Power of Attorney” is a legal document in which one person gives another person the power to act for him, including the power to sign papers for him.  The person who is giving the power is called the “principal.”  The person who is getting the power is called the “Attorney-in-Fact” or “agent.”  “Attorney-in-Fact” doesn’t mean the person who is getting the power has to be a lawyer.  Any adult such as your husband, wife, son or daughter, brother or sister, or friend can be your Attorney-in-Fact.  A “General Power of Attorney” gives broad powers to the Attorney-in-Fact, such as the power to buy and sell real estate, open and close bank accounts, sign checks, sign contracts, and in general, do anything the principal can do.  A “Special Power of Attorney” gives the power to do only one or more specific things, such as the power to buy or sell a certain piece of real estate for the principal.

A “Durable” Power of Attorney is one which will continue to work even if the principal becomes disabled or incapacitated (unable to handle his own financial affairs).  To be “durable,” a Power of Attorney must contain these words: “This power of attorney shall not be affected by the disability of the principal.”  A “Springing” Power of Attorney is one which will start to work only when the principal becomes incapacitated.

Most Powers of Attorney which people have are Durable General Powers of Attorney.  That is, they give broad powers to do anything, they can be used while the principal is still healthy, and they can be used even if the principal becomes disabled or incapacitated.  However, you cannot tell by the title.  Some Durable General Powers of Attorney are called “Durable Power of Attorney.”  Others are called “General Power of Attorney.”  Still others are called “Power of Attorney.”  You have to read the actual words of the document to find out whether a Power of Attorney is “general” or “special”, “durable” or not, and “springing” or not.

A Durable Power of Attorney is an important part of every estate plan.  If a person becomes incapacitated, the Attorney-in-Fact can withdraw money from accounts to pay bills for the principal, open and close bank accounts, sell stocks or mutual fund shares, sell or rent out real estate, and do whatever else is necessary to handle the financial affairs of the principal.  If a person has any assets in his or her own name and does not have a Durable Power of Attorney, there will be a problem if that person becomes incapacitated.  The family members will not be able to withdraw money or pay bills for the incapacitated person.  One of the family members will have to hire an attorney, go to court, and ask the court to appoint a “conservator” of the property of the incapacitated person.  (The conservator used to be called a “guardian.”)  After the court officially appoints someone to be the conservator, the appointed conservator will be able to withdraw money, pay bills, and handle other financial matters for the incapacitated person.  However, the court will order the conservator to keep careful records of every penny that comes to the incapacitated person and every penny that is spent for the incapacitated person.  The conservator will have to go back to court every year, or as often as the court orders.  Each time the conservator goes back to court, the conservator will have to provide an accounting of all the money that came in and went out since the last accounting.  There will be more attorneys fees and costs each time the conservator goes back to court.  The conservatorship hassle and expense can easily be avoided by having a good Durable Power of Attorney, which will allow the Attorney-in-Fact to handle finances for the principal without an exact accounting and without court supervision or attorneys fees.



Advance Health-Care Directives (Part 2) (August 2011)

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Sanford Okura
on August 19, 2011
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ADVANCE HEALTH-CARE DIRECTIVES (PART 2)

In last month’s column I explained that Advance Health-Care Directives have two parts.  One part is a “Durable Power of Attorney for Health Care Decisions.”  It lets you name the person who will make medical decisions for you if you can’t make your own decisions.  The other part is a “Living Will.”  It lets you decide whether you want your life prolonged after you are no longer able to communicate.

I often see a problem with Advance Health Care Directives.  By signing the standard form without customizing it, you are saying that your agent can make all decisions for you, but you are also making your own end of life decisions.  That is a conflict.  You should either have your agent make the end of life decisions, or you should make them, not both of you.  That is why we prepare the Advance Health Care Directive for our clients, rather than having them sign one at the hospital.

I once read an article entitled “Living Wills Don’t Always Work – Or Get Followed.”  The article mentioned a physician in the mainland who had a heart attack.  He had a living will.  His wife, who also was a physician, knew it was too late to save him.  She told the emergency room doctor to stop resuscitation attempts.  He wouldn’t listen to her.  It took her 29 hours to convince them to remove the life supporting equipment. 

If this happened in Hawaii, I believe the result would be the same.  The standard living will says: “I do not want my life to be prolonged if . . . I have an incurable and irreversible condition that will result in my death within a relatively short time.”  When paramedics first arrive to help someone who has collapsed, they don’t know if the condition is “incurable.”  They don’t know if the condition will result in death “within a relatively short time.”  Therefore, the living will does not apply.  They will do all they can to help the person to live.  Even in the emergency room, it may take some testing and some time before they can determine whether the condition is incurable.  That is why they ignore the living will.  They have to.  They don’t want to sit back, let the person die, then risk being sued by the family for not saving the person’s life.

Therefore, you should not expect the living will to be followed until the crisis is over and the doctors are reasonably sure that the patient will never regain consciousness.

If you do not want to be revived when your heart stops beating, then you need a document different from a living will.  You need a “comfort care only” document.  The law used to provide that you can get this only if your doctor certifies that you are terminally ill.  However, in 2006 the Hawaii legislature changed this law.  Now, you can have a “comfort care only” document even if you are not terminally ill.  It has to be signed by you (or, in some cases, by your agent) and by two adult persons who personally know you.  The “comfort care only” document says that you should not be given chest compressions, rescue breathing, electric shocks or medication if your heart stops beating or if you stop breathing.  The old law also required that you wear a “comfort only” bracelet or necklace, but the new law only requires the legal document.  When emergency personnel or other health care providers see the document, they are not supposed to revive you.  But the law gives them an out.  If their own safety or the safety of others requires them to revive you, they may do so.  Also, if a health care provider’s own conscience requires him to revive you, he may do so. 

It is possible that many doctors don’t know about this “comfort care only” law.  If you want to be sure that your Advance Health Care Directive is followed, tell your loved ones to insist that the doctors honor it.  If you have a “comfort care only” document, you might even tell your loved ones to delay calling the rescue squad if your heart stops beating.  We have a right to leave this life peacefully.  We need to ask our loved ones to help us enforce that right.



Advance Health-Care Directives (Part 1) (July 2011)

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Sanford Okura
on July 15, 2011
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ADVANCE HEALTH-CARE DIRECTIVES (PART 1)

Everyone should have Advance Health-Care Directives.  “Advance Health-Care Directives” are instructions which you are giving now (while you can still make decisions) about how you want doctors and hospitals to take care of you when you can no longer make your own decisions.

Most Advance Health-Care Directive forms have two main parts.  The first part is a Power of Attorney for Health-Care.  The second part is a Living Will.

A Power of Attorney for Health-Care is different from an ordinary Power of Attorney.  In an ordinary Power of Attorney, you give someone the power to sign legal papers for you, and to handle your money and property.  In a Power of Attorney for Health-Care, you give someone the power to make medical and other health-care decisions for you.  This person is called your “agent.”  It is wise to name alternate agents.  For example, if you are married, your spouse could be your agent.  One of your children could be your “alternate agent” in case your spouse dies or becomes incapacitated.  If you don’t have a spouse or children, brothers or sisters or friends could be your agent and alternate agents.  It is possible to name more than one agent to serve together at the same time as “co-agents.”  If you name two or more agents as co-agents, it is very important to specify whether any one of them can make decisions for you alone, or whether they have to make decisions by majority vote.  If there is any possibility that two or more agents could disagree on their decisions, then it is best to have only one initial agent, with alternate agents listed one at a time.

In your Power of Attorney for Health-Care, you get to choose whether your agent can start making decisions for you immediately, or only after you become incapacitated.  If you have complete trust in your agent, my opinion is that you should let the agent have the power to make decisions for you immediately.  If the Power of Attorney for Health Care says that the agent can make decisions only after the person is incapacitated, then, in order to make decisions for the person, the agent will have to prove that the person is incapacitated.  This is done by having a physician examine the person and then sign a certificate stating that the person is incapacitated.  It may take time to make arrangements for a physician to sign the certification of incapacity.  In the meanwhile, the agent will not be able to make medical decisions for the person.  Therefore, if you totally trust your agent, the safest thing to do is to say in your Health-Care Power of Attorney that your agent can make decisions for you immediately, even if you are still healthy.  You can always override your agent’s decisions while you are mentally competent.

The other main part of the Advance Health-Care Directive is the Living Will.  The Living Will is different from a Living Trust.  A Living Trust is used to avoid probate.  In the Living Will, you make a choice about how you want to be treated if you are in a coma or otherwise unable to communicate, and if there is no reasonable chance for recovery.  These are your choices: 1) you want them to “pull the plugs” and let you die naturally; 2) you want them to keep you alive as long as possible; 3) you want your agent to decide whether they should “pull the plugs.”  You also get to decide whether you want tube feeding of water and nutrition or whether you want tube feeding to be removed if there is no reasonable hope for recovery

The Advance Health-Care Directive Law changed in July, 1999.  If your Living Will or Power of Attorney for Health-Care was made before July, 1999, it is still legal as long as it was legal at the time it was made.  However, if your Advance Health-Care Directive is not in the form approved by the Legislature in the 1999 law, you may want to update your document.  The new form is more complete.

You can get an Advance Health Care Directive form at no cost at most hospitals, but I recommend getting one through an estate planning attorney, because I have seen many filled out incorrectly.



Do Not Resuscitate

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Sanford Okura
on September 29, 2009
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“DO NOT RESUSCITATE”

With an Advance Health Care Directive, you can make “end of life” decisions.  You can choose to die naturally, without life support.  However, if your heart stops beating, emergency medical personnel will resuscitate you, even if you have an Advance Health Care Directive.

Some people who suffer pain or have a terminal illness would rather not be resuscitated.  To allow people to refuse resuscitation, the “comfort care only” law was created in 1994.  It provides a way for others to know quickly if a person does not want to be resuscitated when his breathing or heart stops. It requires wearing a special bracelet or necklace.  When emergency medical personnel see the bracelet, they provide only “comfort care,” without trying to resuscitate.  However, there is a problem with the law.  Even if you are wearing the special bracelet, a person can resuscitate you if his conscience requires it.  You can learn more about this law on the Department of Health’s website at www.hawaii.gov/health.  At that website, do a search for “comfort care.”  You can request forms for the comfort care only document and the special bracelet or necklace (which costs $9.50) by phoning (808) 733-9210.      

On July 16, 2009, House Bill 1379 became law without the Governor’s signature.  This new law is called Physician Orders for Life-Sustaining Treatment (POLST).  These Physician Orders cover tube feeding, like an Advance Health Care Directive, and also cover resuscitation, like a “comfort care only” document.  You can request not to be resuscitated if your heart stops beating.  It also covers “medical interventions.”  You can choose comfort measures only, limited additional interventions, or full treatment.  These are actual doctor’s orders, which both you and your doctor sign.  It is a two-sided form, with information on both the front and back.   These orders must be followed by medical personnel, if they know that you have a POLST form.  Under the “comfort care only” law, medical personnel can resuscitate you against your wishes, and are protected from lawsuits.  Under POLST, if someone knows you have a POLST form and resuscitates you against your wishes, you could probably sue that person.  Therefore, if the emergency medical personnel know about your POLST form, they are more likely to follow your “do not resuscitate” wish than if you have a “comfort care only” document.

However, there is a problem with POLST.  It does not provide for a special bracelet for emergency medical personnel to know that you have a POLST form.  In order to make the POLST form clearly visible, it is usually printed on bright lime-green paper.  It is recommended that you post a copy where it can easily be seen, such as on your refrigerator, bedroom door, or on a bedside table.  If you are in a hospital or nursing home, perhaps it should be posted near your bed. You should tell your relatives and friends that you have such orders, and what your wishes are.   

The POLST form may be downloaded from the Kokua Mau website at www.kokuamau.org.  On the homepage you will see where to click to download the POLST form.  Kokua Mau is an organization concerned about end of life care.  They played a major role in getting the POLST law passed in Hawaii.  They recommend printing out the form on 8 ½” x 11” paper, with the color being Lime No. 102053 from Kaleidoscope at Fisher Hawaii.  A black and white form is legal, and even a copy is acceptable, but the bright lime green color will make it easier for people to notice in an emergency.

If you are serious about not wanting to be resuscitated if your heart stops, I recommend that you get ­both the POLST form and the “comfort care only” document and bracelet or necklace.  Then, if an emergency occurs while you are shopping or at a restaurant, emergency medical personnel will see your bracelet.  Also, keep a copy of the POLST form in your purse or wallet.

© OKURA & ASSOCIATES, 2009



© Okura & Associates, 2008