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A great resolution involves pre-planning

Hope smiles from the threshold of the year to come, whispering ‘it will be happier’
― Alfred, Lord Tennyson, English poet laureate

Did you make any New Year’s resolutions?  Better hurry.  Now is the time!  How about a resolution to get all your legal pre-planning documents written and executed before the end of 2014?  What a wonderful and thoughtful gift that would be for your family. 

Those necessary documents include a Will or a Trust, a durable, general Power of Attorney for financial and business matters, a Power of Attorney for Health and medical matters, and what is commonly called a “Living Will.”

Today, the companion to living will documents – a durable power of attorney for health care – is in the Senior Moments spotlight.  This important advance directive gives another person legal authority to make medical decisions for you in the event that you’re unable to make them for yourself. You can also use this advance directive to make an organ donation.

When you’re choosing the people to name as your health-care agent and alternate, consider the emotional relationship between each person and yourself. You should also consider their geographic proximity and, most of all, the willingness of the proposed agent and alternate to follow your instructions. An agent is intended to “stand in your shoes.” On this issue, Jason Frank, noted Maryland elder law attorney and author of  the book, Elder Law in Maryland, makes an interesting point about a potential conflict between a health-care agent and a financial agent. For example, says Frank, the financial agent may refuse to pay for medical treatment to which the health-care agent consents.

How can you choose just the right person? The Commission on Legal Problems of the Elderly, within the American Bar Association, provides advice in this area. You should, first of all, choose someone who meets the legal criteria in your state. Because such criteria vary from state to state, you should seek legal advice on this point. Your agent should be willing to speak on your behalf without hesitation. Your agent should be someone able to act on your wishes and, especially, able to separate his or her own emotions from the task they must perform for you.

This agent should know you well and understand what’s important to you. Ideally, your agent should live close by or be able to travel to be at your side if needed. This is a person who is willing to talk with you now about sensitive issues and to listen to your wishes. Your agent should have good conflict-resolution skills, be able to deal with differing opinions among family members, friends and medical personnel, and who could be a strong advocate in the event of an unresponsive doctor or institution.

Every health-care power of attorney should contain an indemnification clause. In other words, it should include language that provides protection for the agent for exercising powers in good faith. Further, the document’s language should promise to “hold harmless” any health-care provider who honors the agent’s decisions.

You should know that this written document can be revoked.  As the creator, you may revoke (cancel) the document at any time by a signed and dated written revocation, by physical cancellation or destruction of the original document, by your oral statement to a health-care provider or via execution of a subsequent advance directive.

Free copies of forms for the durable power of attorney for health care are available at your local agency on aging, many doctors’ offices, senior centers, nursing homes and hospitals. Every state has different forms.  Every advance directive can be tailored so that it’s in accord with particular religious, moral or ethical concerns.

The state of Maryland has published an “Advance Directives Guide” distributed without charge by the Office of the Attorney General. The guide includes free sample forms, with an explanation of each and a Frequently Asked Questions sheet. You may contact the Office of the Attorney General at 410-576-7000, or order the document from the Web site www.oag.state.md.us/Healthpol/index.htm.

A copy of any health-care advance directive should be placed in your medical records. You should retain the original with your important legal papers, always giving a photocopy to the health-care provider as well as your agent(s).

Many of us don’t want to think about ourselves or a loved one becoming incapacitated or in other ways seriously or terminally ill. Indeed, if any elderly loved one is very healthy, it can seem morbid and gruesome to discuss such matters. If, however, that same loved one should unexpectedly have a massive stroke and be totally incapacitated, it’s too late to execute these important documents.

It’s normal and natural to put off these details, or conversations about them with loved ones, until we are suddenly faced with just the sort of emergency that the documents would have addressed. It’s so much better to be prepared and not need the documents than not to have the documents when they are needed.

Thanks for reading. Stay well. See you next week.

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