Crisis Management Series
Plan Ahead for Incapacity
Dr. Jo Turner, Professor, Family and Consumer Economics
At some point in life, many people will need help in managing their affairs or in taking care of themselves. This can happen at any age and for many different reasons. It's most likely to happen, as you grow older, especially in the years prior to death -- a time often characterized by increasing mental and physical decline. Many individuals are disabled six months or longer before they die and may be unable to make their own decisions. A variety of legal documents are available to assist during these periods; some provide temporary help, others offer more permanent assistance. Planning ahead enables you to make important decisions about how your personal and financial affairs will be handled if you are unable to manage.
There are numerous issues to consider including:
- What end-of-life decisions might you or your family members face?
- How can you best prepare for the potential of mental or physical incapacity?
- What planning tools, including the creation of legal documents are available?
- Older people and their families also need to consider a variety of choices such as long-term care, guardianship designation, power of attorney, and dispersal of property and household items.
- Who will execute the last will and testament?
- Likewise, choices need to be made regarding heroic measures to prolong life and the possibility of organ donations.
These are not pleasant issues but when possible, the family needs to plan ahead. Discuss the issues with your family or persons you trust. Early discussion helps to avoid decisions that are in opposition to one's lifestyle and wishes, as well as decisions that are unacceptable to family members or significant others.
Legal documents such as advanced directives are available to enable you to exercise more control over your life.
Advanced Directives
An advanced directive is any written document signed in advance, which gives explicit instruction regarding healthcare treatment or which names someone to make such healthcare decisions for you, if you are unable to speak for yourself. Advance directives usually take the form of a living will, healthcare surrogate, or durable or springing power of attorney.
Living Will
A living will is a document that assists an individual in making his or her wishes known regarding life-prolonging treatment and "artificially provided nutrition and hydration." Generally, a living will is quite limited in applications. A living will allows individuals to prepare in advance for the time that they can no longer actively participate in making decisions about their healthcare. Typically, you and two other people must sign a living will; each must be at least 18 years old, of sound mind, and of no relation to you. They cannot be your doctor or employed by your doctor. They also cannot be employed by the healthcare facility where you are a patient or anyone responsible for paying your medical bills.
Some states will accept a notarized living will. Be sure to keep at least one copy in a safe, easily accessible place. You may wish to carry a copy with you when you travel. Your wishes may not be honored in another state or country if they conflict with existing laws of that state or county. The rule of the state where the treatment occurs controls not the state where the living will was signed. Nevertheless, even if the living will is not honored in the treatment state, it is valuable evidence of the patient's wishes. It's also a good idea to provide a copy of your living will to your physician for your medical record and to relatives with whom you might live or visit.
A national study recommends that you (or your healthcare surrogate if you are incapacitated) discuss these issues with your attending physician and have noted in your chart that you have a living will. This will help in the event of an emergency that occurs at the time when your physician is not in the hospital. Otherwise, heroic measures might be taken which you have specified that you do not want implemented. The study also showed that your living will should spell out which heroic measures you do not want taken.
Healthcare Surrogate
A healthcare surrogate is a trusted person you name to make medical and health care decisions when you are unable to do so. The naming of the surrogate is very important. Surrogates must know your values and wishes intimately, because they serve as your voice and advocate. In most states, you can designate a healthcare surrogate in your living will.
There is a growing trend across the country to combine the living will and healthcare surrogate (which is also called a healthcare power of attorney) into a single comprehensive document. Such a document ensures that the majority of health care decisions for individuals lacking capacity, such as day-to-day care and placement and treatment options, are covered.
At minimum, both of a living will and health care surrogate should be executed at the same time. Generally speaking, a living will merely states your desires about life prolonging treatment when you are considered terminal, while a health care surrogate makes medical treatment decisions for you if you are unable to make them for yourself.
Organ Donations
Many people die each year while waiting to receive an organ transplant. While in recent years the supply of donated organs has increased, the number of transplants performed has also increased. Unfortunately, there is still a great shortage of donor organs.
Some individuals simply do not make their wishes to donate their organs known. Others may believe their religion does not allow for organ donations, and cite a religious reason for not electing to donate their organs. Most religions permit their followers to donate their organs to allow another's life to be spared. If you have questions on these issues, check with your religious leaders. If you decide to donate your organs upon your death, you need to make your wishes known to others and note this on the back of your driver's license, following the proper procedures for your state.
