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updated: 9/24/2020 10:12 AM

Advance directives: Taking control of your health during a pandemic

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  • Leslie Rogers

    Leslie Rogers

 
By Leslie Rogers
Ice Miller LLP

Over the past several months the coronavirus has put many families face-to-face with some of life's worst-case scenarios.

For example, some families have found themselves in a situation where a loved one, suffering from COVID-19, lacks the necessary capacity to make his or her own financial and medical decisions. In such a scenario, and in the absence of advance directives, the incapacitated person's family is often forced to make quick, life-altering decisions they are often not prepared to address on behalf of the incapacitated individual.

Such a situation also can cause emotionally charged disagreements between the family members left with making such decisions, which can strain family relationships. Individuals may not have much control over the coronavirus, but preparing advance directives is one way to take control of future financial and health care decisions and to alleviate some of the emotional burden placed on family members in what might be a heartbreaking situation.

Advance directives are legal documents that allow you to appoint individuals to make decisions on your behalf if you become unable to make your own decisions. There are four main advance directive documents: (1) Financial Power of Attorney; (2) Health Care Power of Attorney; (3) Living Will; and (4) Funeral Directives.

1. A Financial Power of Attorney is a legal document wherein an individual (the "principal") can appoint one or more people to act on his or her behalf (the "agent") regarding personal, financial, and business matters. The Financial Power of Attorney document provides the principal flexibility in how future decisions are made. The principal can delegate some powers to certain agents and some powers to others, or it can delegate all powers to one agent.

For example, a business owner may wish to delegate business decisions to a business partner and delegate other, personal financial decision-making powers to a spouse. Without a Financial Power of Attorney document in place, if someone becomes mentally incapacitated and personal, financial or business decisions must be made, the local probate court might have to appoint a guardian to make all such decisions for the incapacitated individual.

The process to obtain a court-appointed guardian is expensive, time-consuming and inflexible and generally not conducive to making time-sensitive decisions. An attorney should prepare your Financial Power of Attorney to ensure compliance with state law and to allow you to make your wishes clearly known regarding the powers granted to the agent.

2. A Health Care Power of Attorney allows you to appoint individuals to make health care decisions on your behalf if your physician determines you are unable to make such decisions on your own. The form provided in some jurisdictions, including Ohio and Illinois, requires contact information for your agents so the medical staff can contact your agents and ask them to act on your behalf. It also provides your agents the ability to access your medical records so they can make informed decisions on your behalf.

The Health Care Power of Attorney document is perhaps the most important of the advance directives available to you during a pandemic. People of all ages are becoming ill unexpectedly, requiring immediate medical attention. Some of those individuals are left in a position where they are on ventilators or otherwise unable to communicate, in which case the doctors look to a Health Care Power of Attorney for guidance, if available.

Otherwise, doctors are left to make those decisions on your behalf. If you become unable to make your own health decisions, having a Health Care Power of Attorney in place enables you to ensure such medical decisions are being made by people you know and trust.

3. Your Living Will becomes effective if your doctors determine you are unable to make your own decisions with regard to critical or end-of-life decisions only. In Ohio two doctors are required to determine you are unable to make your own decisions; however, in Indiana, only the "attending physician" is required to make such determination.

The document also gives you an opportunity to direct the medical professionals on decisions such as whether you would like to continue with nutrition and hydration if you are in a permanently unconscious state.

Expressing your own wishes prevents your family from having to make those decisions on your behalf. Some states, such as Illinois, provide a form in which the Living Will is incorporated into the Health Care Power of Attorney to streamline all medical decisions.

It is also important to keep your Health Care Power of Attorney and Living Will documents updated. In a situation when a medical professional needs to rely on your health care agents or make a fast decision about your end-of-life care, such medical professional will not question the legitimacy of a recently created document and will be able to act right away.

If a medical decision needs to be made and the medical professionals receive a document that appears old or out of the ordinary, he or she may likely question the validity of the document, which could delay any decisions needed to be made about your health.

4. Funeral Directives: Some states permit individuals to create a separate document to direct decisions regarding your funeral arrangements. Such a document permits you to appoint someone to make decisions related to your funeral arrangements and state your wishes regarding the disposition of your bodily remains.

The Ohio form also permits you to disclose the location of funds you wish to be used to pay for your funeral, cremation and/or burial expenses. Similar to the Health Care Power of Attorney and Living Will forms, a Funeral Directive allows you to dictate your wishes ahead of time, leaving your loved ones with fewer decisions to make in an upsetting, stressful time.

Once you have your advance directives in place, it is important to communicate your wishes with your family so in case of emergency your agents are prepared. Your agents should know where to locate your documents so they can provide your advance directives to medical professionals, financial institutions, funeral directors and others, upon request.

Contacting your attorney to prepare or update your advance directives is a great way to be proactive about your health care and financial decision-making in these uncertain times. For more information contact Leslie Rogers or the Trusts, Estates and Private Wealth attorney with whom you most closely work.