Mark A. Bregman, Estates and Trusts Lawyer


Health Care Powers of Attorney in a Nutshell

Because emergency documents are prepared and intended to be used prospectively, it is crucial that each document reflect your intention, be properly signed and attested, and written in clear language that will be understood by the third party provider to whom it is presented for the purpose of inducing that third party provider to act in accordance with your intentions.

Authorizing someone to make health care related and medical decisions for you is an important decision.  Most estate planners will provide their clients health care powers of attorneys and living wills when drafting a Will or a trust, but the importance of the decision is often lost in the tsunami of other decisions clients must make when creating an estate plan.  Recognize the importance of including health care, medical emergency, and end of life planning into your overall plan to lead a purposeful life.

In my opinion, focusing on WHO will act is most important.  HOW your Agent will act is also important, but except in unique circumstances, it more important to impart your personal philosophy of how you would act, rather than trying to master a list of different possibilities and making specific choices about each.  I have a fanatical devotion about paying attention to the big picture borne from a belief that if you have developed an all-inclusive outlook, your Agent will make the decision that best suits your intentions.

A good plan is not about documents, but about philosophy and intentions.  The documents should assure that the plan is implemented as intended.

All documents that delegate authority to another should include a specific provision allowing the Agent to act as the maker’s “personal representative” under the federal HIPAA rules.

Health care planning may include the following documents –

A Health Care Power of Attorney which appoints the person or persons to make health care decisions for you if you are not able to make them for yourself.  In addition to naming the person or persons to act, the document may indicate what actions are to be taken in specific circumstances.  Focusing on specific circumstances may be useful if there is a great likelihood that the specific circumstance will occur, but otherwise, I believe it is better to focus on having a plan prescribes your philosophy of how decisions ought to be made.

In Arizona, a Medical Power of Attorney has additional requirements that consider civil liberties if the maker is to be confined as part of the treatment plan.  Those precautions may be included in the health care power of attorney or a different document.

A Living Will does not appoint an Agent but rather declares what type of treatment you want in the event of your imminent death if you are in a persistent or permanent vegetative state, or you have a terminal illness, or incurable disease.  Most often the living will declares that you do not want to artificially prolong your life or to receive life sustaining treatment, beyond comfort care, that serves only to prolong the moment of your death.  Whether one of those conditions exists is made as you indicate, usually by one or two physicians that have examined you.

Courtesy of a colleague, I have collected living wills that have been used by clients of different religious persuasions which incorporate tenets of their faith into the decision making process.

A Living Will is not to be confused with a “do not resuscitate” or a prehospital DNR designation which in Arizona must be reviewed with and signed by your physician, be on orange paper, in letter or wallet size and plainly visible to emergency medical personnel.  With the proper form, you may also wear a bracelet that meets the requirements of ARS §36-3251.

Arizona has statutory forms for each of these documents and you can find the forms on the Attorney General’s website along with a 10 minute video that explains their use.  The Arizona Secretary of State provides a registry where you can maintain your current documents to be retrieved when needed. [The information in this paragraph is provided as a public service and should not be considered legal advice nor imply that I endorse substituting generic internet documents in place of sound legal advice and custom prepared documents tailored to your individual needs]

And finally, Arizona residents may designate another person as the temporary guardian for their minor children or wards under a guardianship for up to 6 months at a time.

The “magic” of any of these important documents is that they accurately what you want, who you want to act for you if you are unable to act for yourself, and be written in plain enough language that the third party provider will understand what it is and act in accordance with your intentions.

I would be honored to have the opportunity to discuss your emergency planning intentions and your estate planning needs.  Please call and make an appointment to see me.

Posted in Health Care, Uncategorized on November 21st, 2011 · Comments Off on Health Care Powers of Attorney in a Nutshell

Government Rescinds Medicare Coverage of End-Of-Life Planning

Apparently the suspicion surrounding end-of-life planning is not as far in the past as we might have hoped. The recent Medicare regulation which would have allowed the government to pay doctors who advise patients on options for end-of-life care was rescinded only days after it was enacted.

Why such an abrupt turnaround? The reason is probably not too difficult to guess. Most people know that Medicare-covered end-of-life planning has a tempestuous history both in politics and in the media. This article in the New York Times stated that “while administration officials cited procedural reasons for changing the rule, it was clear that political concerns were also a factor.”

The alteration of the rule may be disappointing, but it shouldn’t stop you from thinking—or talking to your doctor—about your choices for your own end-of-life care. After all, this administrative change of heart does not alter the fact that having these discussions with your doctor (as well as with your health care agent and loved ones) preserve patient autonomy at a time when events may seem to spiral out of control. As National Public Radio pointed out in their article, “it remains perfectly legal for physicians to talk with patients during annual visits paid for by Medicare about how much or little care they want when facing a terminal illness.”

Media firestorms and political debate notwithstanding, your decisions about your end-of-life care are important. When you have these discussions with your doctor and loved ones, and when you have a living will or healthcare directive in place, you are far more likely to get the care you want at the end of your life, regardless of how invasive or restrained you want that care to be.

If you have reservations about what a health care directive might mean to your future medical care, or if you have any questions about this issue, please don’t hesitate to call our office. Your peace of mind is our first priority.

You Think It’s Your Time To Go? “Not So Fast” Says the State of Arizona

Pablo Picasso's "Death of Casagemas"

On July 13, 2009 Arizona governor Janet Brewer signed HB 2616 into law.  The law, hailed by the right to life movement as a great victory, intrudes on your right to privacy and injects the state into the midst of the dying decision of every Arizonan without a living will that expresses the intention to die with dignity.

The law requires every petition for the appointment of a guardian for an incapacitated person to contain a statement that the authority may include the authority to withhold or withdraw life sustaining treatment, including artificial food and fluid.

The law forbids any surrogate without written authority from the patient or a court order from consenting to or approving the permanent withdrawal of artificial administration of food and fluid.
The law provides an automatic stay of not less than 5 days to allow the entry of any order allowing food and fluid to be withheld or withdrawn to be appealed

The law creates a presumption that the absence of a living will means the patient in an irreversible coma or persistent vegetative state did not intend to have food and fluids withheld or withdrawn and the patient intended that all procedures, including medically invasive procedures, be administered in an attempt to prolong the patient’s life.  The law provides stringent guidelines for rebutting the presumption.

Personally, I do not believe the state or any strangers should be involved in any medical decisions, including the most difficult and emotional decisions facing loved ones when the patient is dying.  I believe in the right to privacy, including the right to exercise life and death decisions for your spouse, parent, or child, when that decision is supported by overwhelming medical evidence.  I think your doctors are a better source of information than your government.

However, I respect your right to disagree, and now the state of Arizona gives you a clear choice:  If you do not want food and fluid to be artificially administered once you are in an irreversible coma or persistent vegetative state, you should be certain you have a living will that clearly announces your intentions and a valid health care power of attorney appointing the people you want to direct your medical care if you are unable to do so.

If you fail to create a living will, you and your loved ones may endure the pain and suffering of the full weight of the judicial system oppressing you at your most vulnerable moment.

Protection or meddling?  You decide.

Living Wills, health care powers of attorney, and HIPAA declarations are part of every estate plan prepared by our firm.  We will explain to you the effect of each document and assure that your choice will be plainly heard when needed.