Estate Planning: “The Planning Process – It’s Never Too Early! PART II: Health Care Management”

Elder Law and Estate Planning attorneys, among other planning professionals, are able to assist in three large areas of planning for you and your loved ones that can allow you some confidence and peace of mind as you live your life to its fullest: Financial Management, Health Care Management, and Planning for Death. There’s a lot to think about in each category, and timing issues in many situations can block some choices if you fail to plan in advance (capacity issues or eligibility issues). Therefore, if you want to maximize your freedom of choice and flexibility, you’ll want to think through these three large areas before you actually need the legal authority you require to execute your management plans.

Health Care Management

When it comes to Health Care Management, most people immediately think about a Health Care Directive (HCD), which most importantly appoints someone called an agent to make decisions for you if you become unable to do so yourself. Like the POA discussed in Part I, a HCD allows you to choose who you would like to be your agent, but unlike a POA, this HCD agent only has authority when you are incapacitated. In other words, if you regain your ability to make health care decisions for yourself (like coming out of a coma), the agent’s power to make decisions for you goes away.

Minnesota law does define for medical professionals in what order they should seek authorization from family members if there is no HCD for the patient. But, I have found that most people don’t want to leave that choice up to the doctors or medical staff. Perhaps how you define “family” differs from the statute, or there are certain members of the family that should not have a decision making role in your opinion.

Further, and equally important, is that a well-thought out HCD also allows you an opportunity to communicate how you feel about your medical treatment at certain stages of your life (like whether you’d like to be resuscitated if you are suffering from a terminal illness and have no chance of recovery). I would argue that an HCD is as important as a POA – families can unnecessarily experience heart-wrenching conflict when no one has taken the time to communicate their thoughts about their own death and dying, and the family members disagree on what should happen next in an unexpected tragic event.  Similarly, at this stage, it is wise to have considered a POLST (Physician/Provider Order for Life-Sustaining Treatment), which could instruct health care providers and emergency responders in your treatment wishes (Do Not Resuscitate/Do Not Intubate).

Again, there are protections for those who fail to exercise their right to choose for themselves  – in this case, the court would assign a court-appointed Guardian. Like a Conservator for financial issues, the Guardian would exercise authority over the incapacitated person’s health care, among other things.

We all need to think about these things because we will all move through the dying process at some point – some with more complexities and surprises than others. Give yourself and your loved ones the confidence and peace of mind you all deserve. Ask your attorney to assist you in thinking through these three areas and make sure you understand what kind of plan you need, and how to execute that plan.

ALL READERS:  This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader.  It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.