Transcript Advance Directive Presentation by Susan Patterson, Esq.

TEXAS
ADVANCE DIRECTIVES
YOUR PERSONAL
INSTRUCTION MANUAL
CONTACT INFORMATION
Susan R. Patterson
Attorney At Law
8150 North Central Expressway, Ste. 1150
Dallas, Texas 75206
214-884-4955
214-460-1161
[email protected]
www.srplaw.org
WHAT IS AN ADVANCE DIRECTIVE?
 Instructions
 Given by you
 In advance of need
 For others to follow
 For your benefit
WHEN WILL YOU NEED HELP?
Disease
Incapacity
Death
WHAT KIND OF HELP WILL YOU
NEED?
Financial
Transactions
Medical
Decisions
Final
Arrangements
FINANCIAL TRANSACTIONS
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Banking
Housing
Personal Property
Insurance and Annuities
Investments
Tax Matters
Government Benefits
Retirement Plans
MEDICAL DECISIONS
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Ongoing medical care
Treatment decisions
Housing and personal needs
Care plans
End-of-life decisions
FINAL ARRANGEMENTS
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Pre-need contracts
Funeral and memorial plans
Disposition of remains
Anatomical donations
FINANCIAL DIRECTIVES
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Financial Power of Attorney
Signatory Accounts
Co-owned Assets/Business Agreements
Declaration of Guardian (of Estate)
STATUTORY DURABLE POWER OF ATTORNEY
NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD
AND SWEEPING. THEY ARE EXPLAINED IN THE DURABLE POWER
OF ATTORNEY ACT, SUBTITLE P, TITLE 2, ESTATES CODE.
IF YOU HAVE ANY QUESTIONS ABOUT THESE POWERS, OBTAIN
COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT
AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTHCARE DECISIONS FOR YOU. YOU MAY REVOKE THIS POWER OF
ATTORNEY IF YOU LATER WISH TO DO SO.
STATUTORY DURABLE POWER OF
ATTORNEY, cont.
You should select someone you trust to serve as your
agent (attorney in fact). Unless you specify
otherwise, generally the agent's (attorney in fact's)
authority will continue until:
(1) you die or revoke the power of attorney;
(2) your agent (attorney in fact) resigns or is unable
to act for you; or
(3) a guardian is appointed for your estate.
SDPOA - Continued
I, Jane Principal, 123 Main Street, Anywhere, USA, appoint
Mary Agent, 456 Trustworthy Lane, Somewhere, USA, as
my agent (attorney in fact) to act for me in any lawful
way with respect to all of the following powers
SDPOA - Continued
____ (A) Real property transactions;
____ (B) Tangible personal property transactions;
____ (C) Stock and bond transactions;
____ (D) Commodity and option transactions;
____ (E) Banking and other financial institution transactions;
____ (F) Business operating transactions;
____ (G) Insurance and annuity transactions;
____ (H) Estate, trust, and other beneficiary transactions;
____ (I) Claims and litigation;
____ (J) Personal and family maintenance;
____ (K) Benefits from social security, Medicare, Medicaid, or other governmental
programs or other civil or military service;
____ (L) Retirement plan transactions;
____ (M) Tax matters;
____ (N) ALL OF THE POWERS LISTED IN (A) THROUGH (M). YOU DO NOT HAVE TO INITIAL THE
LINE IN FRONT OF ANY OTHER POWER IF YOU INITIAL LINE N
SDPOA - Continued
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS
LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.
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Create trusts and gift property away – even to your agent
– to qualify you for government benefits
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Sell real estate
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Conduct all necessary business with your insurance and
annuity contract providers (by name)
SDPOA - Continued
UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF
ATTORNEY IS EFFECTIVE IMMEDIATELY AND WILL CONTINUE
UNTIL IT IS REVOKED.
CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING
OUT THE ALTERNATIVE NOT CHOSEN:
(A) This power of attorney is not affected by my subsequent
disability or incapacity.
(B) This power of attorney becomes effective upon my
disability or incapacity.
SDPOA - Continued
I shall be considered disabled or incapacitated for purposes of
this power of attorney if a physician certifies in writing at a
date later than the date this power of attorney is executed
that, based on the physician's medical examination of me, I
am mentally incapable of managing my financial affairs.
SDPOA - Continued
IMPORTANT INFORMATION FOR AGENT (ATTORNEY IN
FACT)
Agent's Duties
When you accept the authority granted under this power of
attorney, you establish a "fiduciary" relationship with the
principal. This is a special legal relationship that imposes on
you legal duties that continue until you resign or the power
of attorney is terminated or revoked by the principal or by
operation of law.
SDPOA-Cont.
A fiduciary duty generally includes the duty to:
(1) act in good faith;
(2) do nothing beyond the authority granted in this power of
attorney;
(3) act loyally for the principal's benefit;
(4) avoid conflicts that would impair your ability to act in the
principal's best interest;
and
(5) disclose your identity as an agent or attorney in fact when
you act for the principal by writing or printing the name of the
principal and signing your own name as "agent" or "attorney in
fact" in the following manner:
(Principal's Name) by (Your Signature) as Agent (or as
Attorney in Fact)
SDPOA - Continued
Record Keeping Requirements
(1) Maintain records of each action taken or decision made;
(2) If requested provide an accounting to the principal that includes:
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list of principal’s property, including a description and current
value
each action taken or decision made
a complete account of receipts, disbursements
the cash balance on hand and where the money is located
each known liability
any other information and facts necessary for a full
understanding
all documentation regarding the principal's property
WHO SHOULD BE YOUR ATTORNEY-IN-FACT?
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Willing to assume legal duties as a fiduciary
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Loyal to you, able to act in good faith and knows your needs
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Able to avoid conflicts
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Financially capable
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Good record keeper
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Joint agents should be avoided
SOMETIMES A GENERAL POWER OF ATTORNEY
ISN’T ENOUGH
Many financial institutions do not recognize the authority of
a general power of attorney.
They have their own forms or require pre-arrangements to
enable your agent to conduct your business.
Inquire with each financial provider and comply with its
requirements before the need arises.
MEDICAL DIRECTIVES
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Medical Power of Attorney
Directive to Physicians & Family or Surrogates (living will)
HIPAA Release
Out-of-Hospital Do Not Resuscitate Order
Declaration for Mental Health Treatment
Declaration of Guardian (of Person)
LEGAL ASSUMPTIONS OF
MEDICAL DIRECTIVES
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Life is valuable
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Self-determination is facilitated
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Family takes precedence over more remote
relationships
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Conflict and indecision is resolved in favor of
continuing treatment
MEDICAL POWER OF ATTORNEY - DISCLOSURES
THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU
SHOULD KNOW THESE IMPORTANT FACTS:
This document gives the person you name as your agent the authority to make any and all
health care decisions for you in accordance with your wishes, including your religious and
moral beliefs, when you are no longer capable of making them yourself.
Your agent is obligated to follow your instructions when making decisions on your behalf.
Unless you state otherwise, your agent has the same authority to make decisions about
your health care as you would have had.
“Health care" means any treatment, service, or procedure to maintain, diagnose, or treat
your physical or mental condition
Your agent may consent, refuse to consent, or withdraw consent to medical treatment and
may make decisions about withdrawing or withholding life-sustaining treatment.
A physician must comply with your agent's instructions or allow you to be transferred to
another physician.
MEDICAL POWER OF ATTORNEY
I, John Doe, appoint William Smith as my agent to make any and
all health care decisions for me, except to the extent I state
otherwise in this document. This medical power of attorney
takes effect if I become unable to make my own health care
decisions and this fact is certified in writing by my physician.
If the person designated as my agent is unable or unwilling to
make health care decisions for me, I designate the following
persons to serve as my agent to make health care decisions for
me as authorized by this document, who serve in the following
order:
ADDITIONAL PROVISIONS AND DURATION OF
MEDICAL POWER OF ATTORNEY
LIMITATIONS ON THE DECISION-MAKING
AUTHORITY OF MY AGENT ARE AS FOLLOWS:
(You can add limitations)
I understand that this power of attorney exists
indefinitely from the date I execute this document
unless I establish a shorter time or revoke the power
of attorney.
QUALIFICATIONS OF A HEALTH CARE AGENT
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Someone you trust
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Someone 18 years of age or older
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Someone who is not one of your healthcare providers
Someone who agrees with your wishes, or at least
comply even if he or she disagrees
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Spouse named in directive who you later divorce
will
WHAT IF I HAVEN’T NAMED A MEDICAL AGENT?
The following persons can consent to medical treatment on your behalf if you
cannot (surrogate decision maker):
Your spouse
An adult child with the consent of all other adult children
A majority of adult children
Parents
Individual clearly identified to act for the patient before he or she became
incapacitated (eg. geriatric care manager hired by patient; patient’s long time
partner)
Nearest living relative
Member of the clergy
Decisions must be based on knowledge of what the patient would desire if known.
DIRECTIVE TO PHYSICIANS & FAMILY OR SURROGATES DISCLOSURES
This is an important legal document known as an Advance
Directive.
It is designed to help you communicate your wishes about medical
treatment at some time in the future when you are unable to
make your wishes known because of illness or injury.
These wishes are usually based on personal values. In particular,
you may want to consider what burdens or hardships of
treatment you would be willing to accept for a particular amount
of benefit obtained if you were seriously ill.
You are encouraged to discuss your values and wishes with your
family or chosen spokesperson, as well as your physician.
DIRECTIVE TO PHYSICIANS - PREAMBLE
I, __________, recognize that the best health care is based
upon a partnership of trust and communication with my
physician. My physician and I will make health care or
treatment decisions together as long as I am of sound
mind and able to make my wishes known. If there comes
a time that I am unable to make medical decisions about
myself because of illness or injury, I direct that the
following treatment preferences be honored:
DIRECTIVE TO PHYSICIANS – TWO SCENARIOS
 If, in the judgment of my physician, I am suffering with a
terminal condition from which I am expected to die
within six months, even with available life-sustaining
treatment provided in accordance with prevailing
standards of medical care
 If, in the judgment of my physician, I am suffering with an
irreversible condition so that I cannot care for myself or
make decisions for myself and am expected to die
without life-sustaining treatment provided in accordance
with prevailing standards of care:
DIRECTIVE TO PHYSICIANS DEFINITIONS
"Terminal condition" means an incurable condition caused
by injury, disease, or illness that according to reasonable
medical judgment will produce death within six months,
even with available life-sustaining treatment provided in
accordance with the prevailing standard of medical care.
Explanation: Many serious illnesses may be considered
irreversible early in the course of the illness, but they may
not be considered terminal until the disease is fairly
advanced.
DIRECTIVE TO PHYSICIANS DEFINITIONS
"Irreversible condition" means a condition, injury,
or illness: (1) that may be treated, but is never cured
or eliminated; (2) that leaves a person unable to care for
or make decisions for the person's own self; and (3) that,
without life-sustaining treatment provided In accordance
with the prevailing standard of medical care, is fatal.
Explanation: Many serious illnesses such as cancer,
failure of major organs (kidney, heart, liver, or lung), and
serious brain disease such as Alzheimer's dementia may
be considered irreversible early on. There is no cure, but
the patient may be kept alive for prolonged periods of
time if the patient receives life-sustaining treatments.
DIRECTIVE TO PHYSICIANS CHOICES
I request that all treatments other than those needed to
keep me comfortable be discontinued or withheld and my
physician allow me to die as gently as possible; OR
I request that I be kept alive in this terminal/irreversible
condition using available life-sustaining treatment. (THIS
SELECTION DOES NOT APPLY TO HOSPICE CARE.)
DIRECTIVE TO PHYSICIANS DEFINITIONS
"Life-sustaining treatment" means treatment that, based
on reasonable medical judgment, sustains the life of a
patient and without which the patient will die. The term
includes both life-sustaining medications and artificial life
support such as mechanical breathing machines, kidney
dialysis treatment, and artificially administered nutrition
and hydration.
The term does not include the administration of pain
management medication, the performance of a medical
procedure necessary to provide comfort care, or any
other medical care provided to alleviate a patient's pain.
ORAL DIRECTIVE TO PHYSICIANS
A competent qualified patient who is an adult may
issue a directive by a nonwritten means of
communication in the presence of the attending
physician and two witnesses, including one who is
not a health care provider. The physician must make
the fact of the existence of the directive a part of the
patient’s medical record, and the names of the
witnesses shall be entered in the medical record.
WHAT IF PATIENT/AGENT/FAMILY
AND DOCTOR DISAGREE
Treatment Medically Inappropriate
Treatment Medically Appropriate
Patient Wants Life-Sustaining
Treatment
Life-sustaining treatment continued Life sustaining treatment is given
for 10 days; patient assisted in
being transferred to willing
provider; only court can extend the
10-day period; BUT artificially
administered nutrition and
hydration must continue past 10
days unless it hastens death, causes
pain, or is “ineffective”
Patient Doesn't Want LifeSustaining Treatment
Life sustaining treatment is not
given or withdrawn, BUT
Life sustaining treatment, including
artificially administered nutrition
and hydration continued until
hospital ethics committee can meet.
If you or your physician disagree
with the decision you will be
assisted in finding a provider who
will comply with your preferences
2016 CHANGES TO DIRECTIVE
Effective April 1, 2016, “artificially administered nutrition and hydration” has been
(effectively) reclassified as normal/comfort care.
(“treatment to enhance pain management and reduce suffering, including artificially
administered nutrition and hydration”)
Ambiguity in the legislation, BUT
Hospitals are gearing up to administer these procedures
Likely to increase the number of patients who need skilled nursing care at end of life
Prolong dying
Uncertain if these treatments will be required of hospice care? If so, fewer patients will die
at home.
Will directives signed prior to April 1, 2016, requesting only comfort care be construed to
not include artificially administered nutrition and hydration? Answer may require people
to redo their directives
Patients can affirmatively refuse artificially administered nutrition and hydration.
OUT-OF-HOSPITAL DNR
Out-of-Hospital Do Not Resuscitate order directs a
health care professional in an out-of-hospital setting
(including an emergency room) to withhold
heart/lung resuscitation and other emergency lifesaving measures
The lack of a DNR does NOT create the presumption
that a patient wants to be resuscitated.
Evidenced by paper document, bracelet or necklace
worn by patient, or notation in patient’s record
HOW TO EXECUTE A DNR ORDER
Standard form signed by competent principal, 2 disinterested witnesses, and attending
physician;
OR
Non written declaration witnessed by a physician, 2 witnesses, including one disinterested
witness, and recorded in patient's medical record
OR
If principal is incompetent; the following people can sign for the principal (along with 2
disinterested witnesses):
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a physician, if the principal previously signed a Directive to Physician;
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a "proxy" named in the Directive to Physicians;
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a legal guardian or medical agent under a Medical Power of Attorney;
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a qualified relative;
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two attending physicians including one not involved in your care
ENFORCING A DNR
Difficult!
EMS and emergency rooms are in the life-saving business
Senior living facilities including most nursing homes require resuscitation
(ask!)
Family members can object and DNR will be ignored
Hospice situation is no guarantee
No liability for resuscitation
DNR FORM
Generally not available from an attorney.
Google “Texas DNR form” – several sites provide fill-in
form in .pdf format, but signature must be witnessed
and signed by a physician
Bracelet/Necklace also available online
BEST LAID PLANS
WHY THEY GO AWRY
 YOU HAVEN'T FIGURED OUT WHAT YOU WANT
 YOU HAVEN'T COMMUNICATED CLEARLY WHAT YOU EXPECT
 YOU HAVE OVERESTIMATED YOUR CONTROL OF THE SITUATION
 YOU HAVE CHOSEN THE WRONG PEOPLE TO MAKE DECISIONS
 YOUR AGENTS ARE “UNAVAILABLE”
 YOU HAVE UNDERESTIMATED OR MISREAD THE FAMILY POLITICS
 YOU HAVE UNDERESTIMATED THE COST OF YOUR EXPECTATIONS
 YOU HAVEN’T WRITTEN DOWN YOUR PLAN OR EXECUTED DOCUMENTS
VETERAN’S BENEFITS
If you are a veteran, or surviving spouse of a veteran who served
for at least 90 days during a time of war, including at least one
day of active duty, you may qualify for a VA pension.
3 levels of pension:
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basic pension (vets only) ($12.8k-$16.8k)
housebound pension ($15.7k-$19.7k)
aid and attendance pension ($21.4k-$25.4k)
more if you have dependent adult children or 2 vets
are married to each other
VA BENEFITS – HOW TO QUALIFY
PENSION:
Income and asset limits apply
HOUSEBOUND & AA: Plus, require help with
activities of daily living
BUT:
Requirements changing as of February 2016
If you want the current, easier rules to apply to you, act
now!! Call me for a free assessment.