"If I ever get that way, push me off a cliff." I remember hearing my friend's mom say this when I was a teenager. I do not remember the exact situation, but it was about the idea of being so incapacitated that she would need around-the-clock care. (I do not mean to knock the idea of nusing care; it's merely an example of things people say about old age.) I have heard my parents express similar "when I get old" statements. Has this been the extent of your discussions and planning about incapacity with your spouse, parents, siblings, and other adult family members? If so, that is not good enough. Imagine it for a moment if you will: Your mother went in for a minor surgery and now, for some reason, she is incapacitated and you are the one having to make decisions for her. Or, your father has had a stroke and the doctors are telling you things that you cannot fully wrap your brain around, and they want you to make a decision. Or, your spouse was hit by a car while riding his bike to work and now he is in a coma, and the doctors cannot say for sure whether he will wake up and if he does, whether he will ever be the same. Will any decision you have to make be easy at this point? Where will you even start?
It is best to consider these possibilities before they happen and plan for them. Here are the 4 Important Things You Need to Have to Address Your Family Members' Incapacity:
The first step to any sort of family planning is Communication. You need to talk with your spouse, parents, and siblings about what their wishes would be, and together you need to commit to getting the next steps in order so that there is never any question about what should be done. (TIP: A great way to bring up the discussion with your parents is by telling them about your own planning, and how it made you wonder about whether they have a plan in place.) Discuss various scenarios, and find out what your family members would want to happen if they were in severe pain, were permanently unsonscious, or had a traumatic brain injury. Find out their thoughts on both life support and tube feeding. Find out if their thoughts differ depending on what stage of life they are in when an event happens (i.e. getting hit by a car when you are 41 vs. having a stroke when you are 85). Tell them your thoughts too. Do not assume that everyone knows what to do, and do not leave that kind of burden on your family to figure out.
2. Legally Executed Advance Healthcare Directive (called by other names in different states)
Make sure that you and all adult family members have executed an Advance Healthcare Directive. Each state differs on the requirements for how this is executed, so it is best to see an attorney to assist with preparation. Your directive should name a Healthcare Representative, as well as an Alternate Healthcare Representative. This person will be responsible for making healthcare decisions for you according to your directive or instructions. If you feel very strongly about your healthcare wishes, you should make the Directive binding on the Representative. Otherwise, you can make the document merely instructional, with your Representative having the final say.
3. Durable Power of Attorney
It is very important to have a Durable Power of Attorney document executed, because you will need someone to make important financial decisions for you if you are incapacitated. Once you are incapacitated (even just mentally), it is too late to execute this document. Your family will have to go to court to prove that you are incapacitated and get a conservatorship appointment. I cannot tell you how many times I have had people contact me to ask them if I can help them get Power of Attorney for a parent who is already incapacitated. It is too late to do it the easy way at that point, and the hard way costs a lot of money.
4. HIPAA Release
A HIPAA Release is necessary these days, so that your Representative and Agent (Power of Attorney) can get information from your doctor to prove your incapacity. Recent laws protect healthcare information and doctors cannot just give your family members information unless they have a release or a court order. Without a HIPAA Release, the other documents may be completely useless, until after the family goes through a court proceeding.
Make sure that you and your family discuss all of these issues and get a plan in place while everyone is healthy and able to communicate. The consequences of waiting too long could be financially and emotionally devastating.
To your family's health & prosperity,
P.S. Want to get started on the most important planning you'll ever do for your family? Give our office a call at (503) 235-5150 to get started. You'll be glad you did.