Coggins, Larreau & Lythgoe, PC

When You Can't Make The Decision

  Most of people think of estate planning as something that really doesn't bear fruit until they are dead, but technology has changed this. Modern medicine can now keep many people alive indefinitely who would have died a few years ago — alive, but not necessarily able to take care of themselves. Today, a good estate plan must take into account the possibility that you may someday be unable to care for yourself, make decisions, or even regain consciousness--but remain alive.

  You may remember the Nancy Cruzan case, in which a Missouri woman injured in an auto accident suffered a head injury that rendered her unlikely to ever escape from an unresponsive, coma-like state. She had left no written instructions about what doctors were to do if she ever became so disabled. Her family wanted to discontinue intravenous feeding, but the hospital--and the state--refused to allow it. Finally, in June 1990, the U.S. Supreme Court ruled that although individuals do have the right to refuse medical treatment, they must express their wishes clearly enough to meet the standards set by the state in which they live.

  Let's hope that you never have to face the choices that the Cruzan family faced. But there are more common and less spectacular cases in which you may have to let someone else make important decisions for you because you aren't able to do so.

  Twenty years ago, half of Americans died in institutions like hospitals or nursing homes; today, it's four out of five. The medical personnel in these institutions will look to you for instruction on whether to revive or resuscitate you. If such procedures would only mean great pain for you and prolonged anguish for your family, or would leave you in a vegetative state, you might not want them performed. But you might not be in a condition to refuse them. Or you may be in a situation where you want to live, but can't manage your affairs.

  What you're trying to avoid is the agonizing situation of your partner or children gathered around your hospital bed, asking each other and your doctor, "What would she want us to do?"--and you being unable to tell them.

  The courts have ruled that all mentally competent adults have the right to refuse medical care. If you're in a condition in which you can't communicate, and there is clear evidence of your wishes regarding treatment (such as a Living Will), those intentions must be obeyed. However, as a practical matter, your instructions must be written down if there is to be a good chance they will be obeyed.

  There are some planning tools that can help. For financial matters, you can uses Trusts and Durable Powers of Attorney to help you manage. For health care decisions, you can draft a Directive to Physicians, commonly known as a Living Will and a Durable Power of Attorney for Healthcare, telling your doctors about these decisions. You should give a copy of each document to your doctors to keep in your medical file. It's also a good idea to give one to the Executor of your Will or the Successor Trustee of your Living Trust.

  The purpose of this brochure is to address some of the common questions people have about Powers of Attorney and Directives to Physicians or Living Wills.

What is a Right to Die Form?

  A Right to Die Form is a healthcare directive--known in various states as a Living Will, a Directive to Physicians or a Declaration. No matter what its name, a person making the document can identify his or her wishes about what life-prolonging treatment should be withheld or provided if he or she becomes unable to communicate those wishes. A doctor who receives a properly signed and witnessed or notarized directive is under the duty either to honor its instructions, or to make sure the patient is transferred to the care of another doctor who will honor its instructions.

  Because healthcare directives sprung from the Right To Die movement in which the focus was dying without medical intervention, many people tend to think of them as documents appropriate only for directing that life-prolonging procedures be withdrawn or withheld. However, these documents should more correctly be viewed as a way to direct doctors to provide you with whatever type of medical care you want, within reality and reason. For example, some people want to reinforce that they would like to receive all medical treatment that is available--and a healthcare directive is the proper place to specify that.

What is the Difference Between a Power of Attorney and a Durable Power of Attorney?

  A Power of Attorney is a legal document you can use to give someone else the authority to take specific actions on your behalf, such as signing your checks to pay your bills or selling a particular piece of real estate for you. If a Power of Attorney is durable, it remains valid and in effect even if you become incapacitated and unable to make decisions for yourself. If a Power of Attorney document does not explicitly say that the power is durable, it ends if you become incapacitated.

  There are two kinds of Durable Powers of Attorney: a Durable Power of Attorney for Finances lets you name someone to manage your financial affairs if you become incapacitated, and a Durable Power of Attorney for Healthcare lets you name someone to make medical decisions for you if you are no longer able to speak for yourself. Preparing these two documents, along with a Healthcare Directive -- commonly called a Declaration or Directive to Physicians and commonly thought of as a Living Will -- that sets out your wishes for medical care, ensures that your medical and financial matters will stay in the hands of trusted people you choose.

Do I need a Durable Power of Attorney for Finances if I Own Little Property?

  Almost everyone with property or an income can benefit from a Durable Power of Attorney for Finances. It is particularly important, however, to have a Durable Power of Attorney if you fear that health problems in the future may make it impossible for you to handle your financial matters.

  Making a Durable Power of Attorney ensures that someone you trust will be able to manage the many practical, financial tasks that will arise if you become incapacitated. For example, bills must be paid, bank deposits must be made and insurance and benefits paperwork must be handled. Many other matters may need attention as well, from property repairs to managing investments or a small business. In most cases, a Durable Power of Attorney for Finances is the best way to handle tasks like these.

Can a Durable Power of Attorney Help Me Avoiding Court Proceedings?

  The main reason to make a Durable Power of Attorney for finances is to avoid court proceedings if you become incapacitated. If you do not have a Durable Power of Attorney, your relatives or other loved ones will have to ask a judge to name someone to manage your financial affairs. These proceedings are commonly known as Conservatorship proceedings. In the State of Utah, the person the court appoints to manage your finances is called a Conservator.

  Conservatorship proceedings can be complicated, expensive and even embarrassing. Your loved ones must ask the court in a public hearing to rule that you cannot take care of your own financial affairs. Conservatorship proceedings are matters of public record; in some places, a notice may even be published in a local newspaper. If relatives fight over who is to be the Conservator, the proceedings will surely become even more disagreeable, sometimes creating disputes that permanently injure family relationships. In addition, Conservatorship proceedings can become very expensive and may take a significant period of time.

What if I Don’t Have Anyone I Want or Trust to Manage My Financial Affairs?

  The expense and intrusion of a Conservatorship are rarely desirable. In a few situations, however, special concerns justify the process.

  If you can't think of someone you trust enough to appoint as your attorney-in-fact, with broad authority over your property and finances, don't create a Durable Power of Attorney for Finances. A Conservatorship, with the built-in safeguard of court supervision, may be worth the extra cost and trouble.

  A Durable Power of Attorney is an accepted and powerful legal document in the State of Utah, as well as most other states. Once you've finalized yours, anyone who wants to challenge your plans for financial management will face an uphill battle in court. However, if you expect that family members will challenge your document or make continual trouble for your attorney-in-fact, a Conservatorship may be preferable. Your relatives may still fight, but at least the court will be there to keep an eye on your welfare and your property.

  If you expect family fights and feel uncomfortable making a Durable Power of Attorney for finances, you should to talk with a knowledgeable attorney. He or she can help you weigh your concerns and options, and decide whether a Durable Power of Attorney for Finances is the best option for you.

Your Team of Experienced Attorneys & Counselors At Law