Louisiana Estate Planning and Elder Law

Tips for Choosing a Health Care Agent

Once you've decided to prepare a health care power of attorney, the next big decision is who to appoint as your health care decision-maker. Here are some thougths. Pick someone who is:

• Trustworthy: The most important consideration is appointing someone who will do what you would want under the circumstances. This is a person committed to your way of thinking over their own feelings.
• Tough-skinned: They can hold up under pressure from family that may not agree with your decisions and/or medical professionals steering them toward a decision without proper justification.
• Take-charge: They're not afraid to ask the tough questions and keep asking until they get a satisfactory answer.
• Observant: They know you well enough to notice changes in your condition and take note of how you are being treated by medical staff.
• In the Loop: Communication is key. The power of attorney document can't cover every possible situation. Make sure your agent fully understands your thought process so that they have a framework for making decisions based on your wishes.

Click here for Tips on Choosing a Guardian for Minor Children
Click here for more information on a Health Care Power of Attorney and other health care planning documents

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Discuss Your Estate Plan with Family

I recently read an article by Christopher D. Reedy with Begley & Bookbinder, P.C. of New Jersey regarding the importance of discussing your living will with your family. He recalls the story of Terry Schiavo and how it has served as the impetus for many people to draft a living will. But, as Christopher says, many people leave the lawyer's office and put the document in a drawer somewhere without discussing it with family. He suggests having a family meeting to discuss the living will and your reasons for it. That way, everyone is on the same page.

The same reasoning applies to other estate planning documents. If you share your ideas and wishes regarding your plan with your family beforehand, you might prevent disagreements later. During the family meeting, you can discuss:

• The overall distribution of your assets and why you have decided on that plan
• Your estimated state and federal tax liability and the plan for payment
• The responsibilities of those named as trustee, guardian, executor and those that will carry on the family business
• Your charitable giving plan and why it is important to you

This meeting could prevent fights down the road and helps to ensure that your wishes are carried out.

Health Care Planning Documents

Scenario 1 -  You are unmarried and you are injured in a car accident.  Surgery is recommended and you are unconscious. Who makes the decision to operate?

Scenario 2 - You are in an irreversible coma. You estranged spouse and your parents are at your bedside; they disagree about whether life support should be continued. Who decides?  (Sound familiar: this is similar to the Terri Schiavo situation)

Scenario 3 - You are a widower, unable to make financial decisions and require home health care or a nursing home. Your eldest child is financially irresponsible. Who decides?

These scenarios illustrate why it is important to have one or more health care planning documents.  There are several terms used to describe health care planning documents. The definitions vary by state, but in general can be described as follows:

• Special Medical Power of Attorney (also known as a "Health Care Proxy') - allows a person to designate another individual who can give consent to medical procedures.  The document can be effective whether or not a person's condition is terminal and irreversible.
• Durable Power of Attorney - allows a person (the "principal") to designate another person as "agent" to make  variety of decisions on behalf of the principal, usually involving finance and business transactions. In the medical context,  this document might give the agent access to funds in the principal's bank account to pay hospital bills.  The durable power of attorney can be combined with the medical power of attorney.
• Living Will - allows a person to describe in advance what treatment options they authorize in the event they should have a terminal and irreversible condition.  For example, a person may declare that they want doctors to withdraw or withhold life-sustaining procedures, such as artificial means of respiration.

Estate Planning 101

Estate planning doesn't have to be difficult or only for the rich and financially savvy person. A basic estate plan allows you to plan for a day when you can't make decisions on your own and decide who gets your assets upon your death. The plan usually includes the following documents:

• Durable Power of Attorney - Allows you to designate another person as "agent" to make a variety of decisions on your behalf , usually involving finance and business transactions. The durable power of attorney can be combined with the medical power of attorney (see below).
• Special Medical Power of Attorney (also known as a "Health Care Proxy') - Allows you to designate another person who can give consent to medical procedures. The document can be effective whether or not a person's condition is terminal and irreversible, which is required for the Living Will to become effective (see below)
• Living Will - Allows you to describe in advance what treatment options you authorize in the event you should have a terminal and irreversible condition. For example, you may declare that you want doctors to withdraw or withhold life-sustaining procedures, such as artificial means of respiration.
• Will - Allows you to designate who gets your assets upon your death. If you have considerable assets, say over $2 million dollars, you may also use your will to help plan for the Federal Estate Tax. The will might also designate a guardian for your minor children.

It is sometimes helpful to consider these documents as part of a continuum. The Durable Power of Attorney/Medical Power of Attorney is typically effective immediately upon you signing it. Next, in the event of a terminal condition, the Living Will comes into play. Finally, your Will directs who gets your assets upon your death.

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