Though it is difficult to contemplate, we all know that there may come a time when we cannot manage our own financial affairs or make our own medical decisions. Careful planning can give you some control over the circumstances of your care and treatment and can ensure that you have chosen the people who will step in to make those decisions for you and have expressed your preferences for your care. There are a number of legal documents that allow you to do this.
Advance Medical Directives
Most states prescribe forms to tell physicians, caregivers and loved ones who is to make decisions for us and how you wish to be treated in the event you have a terminal illness or cannot make medical decisions for yourself. In Virginia this document is the Advance Medical Directive (AMD). Both the Living Will and Health Care Power of Attorney are combined into this one document. If carefully prepared in advance, this document can ensure that your choices are carried out – even if you cannot speak or make your wishes known.
The Living Will (or health care declaration) portion of the document authorizes the provision, withholding or withdrawal of life-prolonging procedures in the event you have a terminal condition, your death is imminent, or you are in a persistent vegetative state or coma and you are unable to communicate with medical personnel. You can direct the specific treatments and procedures you do, and do not, want administered. This is your direct statement of your specific wishes in such a situation to your agent, health care providers, and loved ones.
In the Health Care Power of Attorney you appoint the person of your choice as your agent to make medical decisions for you in the event you are not competent to do so yourself. This is a grant of power to your agent rather than an expression of your wishes, although you may to a person of your choice to make decisions for you when you cannot. While you are competent you continue to make choices for your own care. If your doctors determine you lack the capacity to make decisions about your medical care and treatment, however, your agent can step in to make decisions in your best interest, taking into account your medical information, wishes, beliefs and values. Instructions regarding organ donation, cremation, and burial can be included in the document as well.
What happens to someone without an AMD who has a medical emergency?
Emergency medical personnel will communicate with your spouse or children, or others as listed in the Virginia Code, if you do not have documents to guide them. Keep in mind, however, those individuals may disagree over your care or not be available to assist when you need them. Additionally, they may not have the authority to handle medical or long-term care insurance claims, hire or fire caregivers, or arrange for rehabilitation or long-term care. If you are not married and have no close relatives this can be further complicated. The only recourse, if those closest to you disagree or if non-emergency decisions and arrangements need to be made, is to have a guardian appointed by the Circuit Court for your jurisdiction. This is a public, expensive, and potentially lengthy process involving several lawyers and may result in the appointment of an individual who does not know you or your wishes at all. Not the outcome most people would want.
Durable Do Not Resuscitate Orders
Despite your direction in Advance Medical Directives, emergency medical services personnel are required to attempt to resuscitate all patients in cardiac or respiratory arrest if they are called in an emergency unless they are given a Do Not Resuscitate Order. This is true in all 50 states! If you suffer from a serious medical condition and you do not want to have cardiopulmonary resuscitation, you must ask your physician to sign a Do Not Resuscitate Order. Only a physician can authorize this.
Virginia Physician Orders for Scope of Treatment (POST)
In the event you are receiving care for a serious medical condition you can ask your healthcare provider to discuss your prognosis and opportunities to choose care options based upon your current preferences through POST Orders. These can be changed as you desire and as your condition changes. If the patient is unable to sign this form, then the legally authorized medical decision maker (such as the agent under Advance Medical Directives), in consultation with the treating physician, may sign this form.
General Durable Financial Power of Attorney
A General Durable Financial Power of Attorney (POA) authorizes someone you choose to make financial and legal decisions for you. This is a written legal document that can be revoked by you at any time and terminates upon your death. It allows your agent to handle most of your affairs, including writing checks on your accounts, filing tax returns and collecting various benefits, such as Social Security and pensions.
What happens to someone who becomes incapacitated and has no POA?
A person who becomes incapacitated, whether because of illness or an accident, who has not designated an agent to handle finances can fall prey to scammers, undue influence of others, and significant losses. The inability to pay bills when due and manage finances is personal to each person, however, unless they have authorized and empowered someone else to assist. The legal remedy used by the Courts is the appointment of a Conservator to take control of financial and other assets, make management decisions, pay bills, and sell assets as necessary to pay for the care of the incapacitated person (the “ward”). As with a guardian appointment, this is a lengthy and public process in the Court and can take some time, even in an emergency. The conservator who is appointed will be required to file an inventory and annual accountings with the Commissioner of Accounts for as long as the appointment lasts, with filing and audit fees paid from the estate of the ward.