The Cost of Failing to Plan

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By: Susie Germany

Every day in our office we see the cost of failing to plan for emergencies, end-of-life decisions and for navigating difficult family dynamics when there is an unexpected illness or death in a family.

According to a Gallup Poll in May, 2016, it is estimated that over 56% percent of people in the United States do not have a will or any disability planning documents, such as Medical Durable Powers of Attorney, General Durable Powers of Attorney or Advanced Directives or Living Wills.

Today with widespread internet research for everything from purchasing a car, to diagnosing an illness, there is a general belief that people can just download a form for any legal need that may arise or plug in some basic information into a blank template to create an instant estate plan.

Estate planning is not just about documents.  It is not about filling in a blank.  It is really about communication with family, friends and loved ones about your wishes, meeting with an experienced attorney who specializes in issues pertaining to aging, illness and end-of-life, and getting meaningful, helpful advice about what documents need to be in place, specific to each individual’s situation.

Recently, I have seen advertisements online and on Facebook for online Will forms and prepaid legal plans and seminars where people can go and do their will themselves in a group setting.  What appears as a cost-saving venture, really can create a nightmare for a family.

Here is a recent example:  Fred, a 70 year old retired veteran was recently widowed.  His grandson Terry, offered to take Fred to a low-cost seminar at the local senior center where every attendee filled out a fill-in-the-blank will and powers of attorney.  The seminar was taught by an attorney and there were 27 attendees in the class.  The class was about two hours long.  The attorney did not meet with each individual personally, nor ask any in-depth personal questions.  Fred left the seminar with a signed and notarized Will, a Medical Durable Power of Attorney and a General Durable Power of Attorney, all naming Terry as agent and personal representative of his estate.

Three months later our office was contact by Fred’s neighbor.  He called because he saw our sign and was concerned because he had just been over at Fred’s house and noticed something was amiss.

The neighbor had not seen Fred in a few months and stopped by to say hello.  When he went inside the house, he noticed the house was a mess, and there were dirty dishes all over the kitchen.  The neighbor thought this was odd, because Fred and his wife had been immaculate housekeepers.  When the neighbor suggested they have coffee on the porch, Fred’s grandson appeared from the basement.   Fred seemed very distracted so the neighbor then asked Fred to come next door to his house to help him with a project.

When the neighbor left the house with Fred, he noticed Fred seemed distracted and had lost a lot of weight since he last saw him.  He offered Fred a snack and some coffee and as they spoke the neighbor learned that since Velma, his wife had passed, their grandson, Terry, had moved in to help him.

However, Fred seemed concerned because he said he was worried, as he had recently done his Will and powers of attorney and now Terry had him sign over some papers adding Terry to the title of his house and his car.  Terry said that it was a good idea since Fred was getting his affairs in order it was also a good time to do this to “keep the government out of Fred’s business.”

Fortunately, the neighbor, a retired school teacher, became concerned and asked Fred if he was doing okay, getting enough to eat and sleep and how he was doing with his finances.  Fred said he wasn’t sure how his finances were because Terry was paying all his bills using his power of attorney.

After Fred went home, the neighbor called our office.  He then called Fred and encouraged him to come see us to review the documents he had signed at the seminar.  Needless to say, we discovered Terry had taken full control of Fred’s financial world.

In the end, it was discovered Terry had helped himself to over $50,000 of Fred and Velma’s hard-earned retirement funds and had managed to get Fred to sign his home and car over to Terry.  The documents Fred filled out that day at the seminar did not in fact leave Fred’s estate to his disabled granddaughter, as he had intended, but instead to Terry.

Once we were able to sort this all out with Fred, we encouraged him to evict Terry, which he did.  Terry was eventually charged with a felony, for theft from an at-risk adult.

The moral of this story is simple.  People do not go to attorneys to fill out a form.  They go to attorneys for guidance, advice and a plan.  This case was a perfect example of why someone should not do fill-in-the-blank estate planning or in a group format.  Fred did not fully understand what he was signing, what power he was giving to Terry, and the plan that was created did not do special needs planning for Fred’s granddaughter.  Instead, it gave an unemployed grandson who felt very entitled, the opportunity to take advantage of his grandfather financially.  Fred receiving no individual advice or counseling about his individual situation.  Had this occurred, possibly this theft and financial exploitation could have been avoided.

The old adage rings true.  If something seems too good to be true, it probably is.  Or if something feels too easy to accomplish, there is probably a reason for this.   Whereas it may have cost Fred upwards of $2000 to create a very sound estate plan that would have met his needs and planned for his disabled granddaughter, failing to plan cost him $50,000, ownership of his home, and a lot of legal fees and stress to clean up the mess once it was discovered what had occurred.

When in doubt, the assistance of qualified professionals is very valuable.

 

 

 

 

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Healthcare Proxy‐by‐Statute

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In Colorado, no one is given automatic authority in decision making for another adult, and healthcare providers cannot simply make decisions for individuals except in an emergency.

  • “Next of kin,” spouses, adult children, or other relatives are not authorized decision makers unless duly appointed as a Healthcare Agent or Guardian.
  • If an individual does not have a Healthcare Agent under Medical Durable Power of Attorney or Guardian, and if that individual is unable to make or express decisions, a “Proxy-by-statute” is needed.
  • First, the individual’s physician “certifies” that the individual does not have capacity to make his or her own decisions. As of January 1, 2009, Advanced Practice Nurses (APN) may also make this determination about an individual in collaboration with the attending physician. Such collaboration may be done in person, by phone, or electronically. The nurse must document the name of the physician with whom she or he collaborated.
  • Next, the physician, APN, or someone designated by the physician or APN must make a good faith effort to locate and assemble (physically or via communication technology) people who have an interest in the care of the individual who is ill.
  • These “interested parties” – which can be family members by blood, marriage, or adoption; life partners; close friends; pastoral or other advisors – determine by consensus which one of their group will serve as the “Proxy” for the individual.
  • Once the Proxy is selected, the physician or APN documents the name and contact information for the Proxy in the medical chart. The individual must also be informed of the choice of Proxy.
  • If the group cant agree on who the Proxy should be, then guardianship must be pursued through the courts.
  • Like a Healthcare Agent, the Proxy should act according to the known wishes and values of the individual; so the Proxy should know the individual well and, if possible, have a clear understanding of his or her wishes and values and how they might affect medical treatment decisions
  • Proxies selected in this way cannot withhold or withdraw artificial nutrition and hydration for the individual, unless two physicians (one trained in neurology) determine that the treatment is only serving to prolong the individual’s death.
  • The Proxy-by-statute process is intended as a stop-gap in unexpected circumstances or for a particular episode of care. Proxy-by-statute decision makers are not intended to remain in the role indefinitely. If the individual requires long-term medical decision making, an interested person should seek Guardianship through the courts.
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How to Select a Healthcare Agent or Proxy

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When you decide to pick someone to speak for you in a medical crisis, in case you are not able to speak for yourself, there are several things to think about. Below is a list of suggested items to review or use as a guide when you’re selecting the person you would like to act on your behalf.

  • Usually it is best to name one person or agent to serve at a time, with at least one successor, or back-up person, in case the first person is not available when needed.
  • The person or people you select will need to meet the legal criteria in your state for acting as agent or proxy or representative?
  • You will want to make sure they are willing to speak on your behalf as well as being able to act on your wishes and separate his/her own feelings from yours.
  • It is suggested that this person Lives close by or could travel to be at your side if needed.
  • Knows you well and understands what’s important to you.
  • Is someone you trust with your life?
  • Will talk with you now and in the future about sensitive issues and will listen to your wishes.
  • Will likely be available long into the future?
  • Would be able to handle conflicting opinions between family members, friends, and medical personnel.
  • Can be a strong advocate in the face of an unresponsive doctor or institution.

The person you choose to make health care decisions for you is known by different names in different states. This person is sometimes called a health care agent, proxy, representative, attorney-in-fact, surrogate, or even patient advocate. State rules for who may be a health care proxy vary, but the most common groups disqualified are these:

  • Anyone under age 18.
  • Your health care provider, including the owner or operator of a health or residential or community care facility serving you—unless this person is your spouse or close relative.
  • An employee of your health care provider—unless this person is your spouse or close relative.

 

What you will need to do after selecting a person to act on your behalf.

  • Talk to your proxy about the qualifications on the first page of this worksheet.
  • Ask permission to name him or her as your decision maker.
  • Discuss your health care wishes and values and fears with this person.
  • Make sure your decision maker gets a copy of your advance directive and knows where to find the originals.
  • Tell family members and close friends whom you picked.

Most people wish to give their agent the broadest authority possible to make all health care decisions when they are no longer able, including those about the use of life-sustaining treatments such as artificial nutrition and hydration. If you do not wish to give such broad authority to the decision maker you have selected, think about what limitations you would impose and describe them as best you can.

Key Question: If you include written instructions in your advance medical directive and there is a conflict between your decisions instruction and your advance directive, which takes priority? You will want to specify My Agents Direction or My advance medical directive.

 

 

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Medical Durable Power of Attorney (MDPOA)

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Please be aware that what follows is just information, not advice. Every situation is different. If you have questions about your particular situation, please speak to an appropriate qualified healthcare or legal professional. More information about advance directive documents and the Colorado specific forms can be found on the Colorado Advance Directives Consortium website: www.ColoradoAdvanceDirectives.com or www.caringinfo.org.

♦ In Colorado, no one is automatically authorized to make healthcare decisions for another adult.

♦ The Medical Durable Power of Attorney (also called the “Power of Attorney for Healthcare”) is a document an individual (the principal) signs to appoint someone else to make the principal’s healthcare decisions in case of incapacity. The person appointed is called a “Healthcare Agent.”

♦ In most cases, the Healthcare Agent only makes decisions for the principal when he or she cannot. This may be temporary, following an accident or injury, or long term, if the principal is permanently incapacitated.

♦ The Healthcare Agent is authorized to request and review medical records, consult with the principal’s doctors and other healthcare providers, and make all necessary healthcare decisions.

♦ The Healthcare Agent is supposed to act according to the principal’s wishes and values, so whoever is appointed as agent must have a clear idea of the principal’s life values, goals, and preferences for treatment. The Healthcare Agent must be able to devote the time and energy to handling complex healthcare needs, perhaps over many years.

♦ A Medical Durable Power of Attorney (MDPOA) is not the same as a general Power of Attorney (POA). The MDPOA Agent is only authorized to make healthcare decisions. A general POA covers legal and financial affairs. The authority of both types of Healthcare Agent ends at the death of the principal

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Cardio-Pulmonary Resuscitation (CPR) Directive

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♦ A CPR (cardiopulmonary resuscitation) directive allows an individual to direct in advance that no one should administer CPR if the individual’s heart or lungs stop working or malfunction.

♦ CPR directives are almost always used by individuals who are seriously or terminally ill or elderly. In these situations, the trauma involved in CPR is likely to do more harm than good, but emergency personnel are obliged to perform CPR unless a CPR directive tells them not to.

♦ A CPR directive is not the same as a DNR order. A DNR order is a doctor’s order made for seriously or terminally ill individuals in healthcare facilities, including nursing homes. The DNR does not require the individual’s consent, and it does not remain in effect if the individual leaves the facility.

♦ A CPR directive must be signed by both the individual (or the individual’s Healthcare Agent or Proxy-by-statute) and his/her physician. Faxes, photocopies, and electronic scans of CPR directives are just as valid as original forms.

♦ CPR directives must be immediately visible to emergency personnel.

For more active folks with CPR directives, a wallet card or special CPR directive bracelet or necklace can be obtained. Contact Award & Sign Connection, www.AwardandSign.com, 303-799-8979, or the MedicAlert Foundation, www.MedicAlert.org, 888-633-4298 for more information.

 

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A Breif Overview Of The Colorado Medical Orders For Scope Of Treatment (MOST) Form

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The Medical Orders for Scope of Treatment (MOST) program begins with a conversation between a healthcare professional and patient (individual) to determine preferences in key areas of life-sustaining medical treatment, including CPR, scope of treatment, and artificial nutrition.

The conversation may be guided by any healthcare professional with sufficient expertise to discuss the medical facts of the individual’s situation and likely risks and benefits of the various treatments described. The decisions are then documented on the MOST form: a 1-page, 2-sided document that consolidates and summarizes those individual preferences.

Individuals may refuse treatment, request full treatment, or specify limitations.  These preferences may be previously or more extensively documented in advance directives, such as a Living Will, CPR Directive, or Medical Power of Attorney. Completion of a MOST does not revoke these instruments; all such other directives remain in effect. In general, the MOST overrules prior instructions only when they directly conflict.

A more recently completed MOST, however, invalidates all previous MOST forms. The MOST form was significantly revised in 2015; earlier forms remain valid unless and until they are superseded by a newer version. The MOST is primarily intended for elderly, chronically, or seriously ill individuals who are in frequent contact with healthcare providers.

No one is or may be required to complete a MOST.

The MOST must be signed by the individual or, if incapacitated, by the individual’s authorized Healthcare Agent, Proxy, or Guardian. It must also be signed by a physician, advanced practice nurse, or physician’s assistant. This signature translates patient preferences into medical orders, which must be followed regardless of the provider’s privileges at the admitting facility.

The standardized form can be easily and quickly understood by individuals, healthcare providers, and emergency personnel. The original is brightly colored for easy identification, but photocopies, faxes, and electronic scans are also valid.

The MOST form belongs to and “travels” with the individual; it must be honored in any setting: hospital, clinic, day surgery, long-term care or rehab facility, ALR, hospice, or at home. The portability of the form allows seamless documentation of treatment preferences and closes gaps as individuals transfer from setting to setting or experience delays in access to providers.

A section on the back prompts individuals and providers to regularly review, confirm, or update choices based on changing medical conditions and goals. Healthcare providers who cannot follow the orders for moral or religious reasons may decline, but they must arrange prompt transfer of the individual to another provider who will comply with the orders.

A master MOST form can be downloaded from the Colorado Advance Directives Consortium website: www.ColoradoAdvanceDirectives.com

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Advance Directives in Colorado

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National Health Care Decisions Day is April 16th! For 2017 it will be a week-long event from April 16th – 22nd. In honor we will be posting daily information on Advance Directives.

Since 1985, the Colorado General Assembly has authorized several methods for individuals to document advance medical directives and/or appoint surrogate healthcare decision makers.

  • Colorado Directive as to Medical Treatment (aka “living will,”)
  • CPR Directive
  • Medical Durable Power of Attorney for Healthcare
  • Healthcare Proxy process (see Appendix A for details)

The first two – the living will and CPR Directive – document refusals of certain life-support treatments under certain circumstances; the second two provide mechanisms by which legal representatives or surrogates may be identified for the purpose of healthcare decision making. (For more information on these advance directives and appropriate forms, please refer to Your Right to Make Health Care Decisions [CHA, 2012]). All four tools are empowered by the well-established, in law and medical practice, right of a competent adult to refuse any medical treatment at any time for any reason, even if the result is death.

The Federal Patient Self-Determination Act of 1990 requires any healthcare facility receiving federal funds to ask patients whether they have advance directives and to provide information on the available options, if desired. Despite this requirement, and more than two decades of vigorous efforts to educate the public about their rights and responsibilities with respect to advance medical treatment decision making, it is estimated that only about 18 to 30 percent of Americans generally and only about 1 in 3 chronically ill individuals have executed advance directives. Among the critically or terminally ill, the rate does not exceed 1 in 2 (USDHHS, 2007). Furthermore, even when advance directives are completed, barriers and stumbling blocks can impede their use.

There are numerous explanations for the “failure” of advance directives, but some of the most often cited include:

  • Opportunities for discussion of possible treatment preferences and documentation of decisions are limited by systemic gaps or constraints and personal issues.
  • Documented treatment preferences/decisions are unclear, not specific, or not relevant to the individual’s current health status.
  • Documents – or surrogates – are not available at the time they are needed.
  • Documents are incomplete, in a form that is not familiar to the healthcare professional or setting, or otherwise do not conform to legal or standard practice requirements. (USDHHS, 2007)

Some intensively collaborative educational efforts focused on particular communities have achieved completion and adherence rates well above 70 percent (e.g., LaCrosse, WI [Hammes & Rooney, 1998]; Oklahoma [McAuley, 2008]). Other interventions have focused on particular factors, such as enhanced training of healthcare and social service professionals, community education, introducing setting-specific systems (e.g., automatic completion of ADs on nursing home admission), and improving particular documentation tools.

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