For 73 years John had lived as a proud, strong, independent man. He had started a business from scratch and still managed it until selling it at age 70, shortly after his wife's death.
Though he remained in good health, he was afraid of an extended illness leaving him dead by everyone's definition but doctors... doctors capable of keeping the heart beating in a body long after the brain ceases to function and the spirit leaves.
To make sure that did not happen to him, John prepared a Living Will, instructing his doctors to let his body die with the rest of him.
Unfortunately, John did not prepare a Durable Power of Attorney for Health Care.
His doctors never even knew of his Living Will. When he became ill, he went through every indignity he tried to avoid, the medical bills ate up his entire estate, and the efforts of his children to persuade the doctors to disconnect him once there was absolutely no chance of recovery fell on deaf ears.
If John had prepared a Durable Power of Attorney for Health Care, all of his wishes could have been carried out.
Changes in Tennessee law in 1992 allow you to avoid virtually any kind of medical treatment or procedure after incapacitation that you can stop doctors from giving you when you are alert and able to say what you do an do not want.
The key is to prepare a Durable Power of Attorney for Health Care, naming a person you trust will be able to make such hard decisions, and then to let the person you name know under exactly what circumstances you want to continue medical care and under what circumstances you don't. This is where the Living Will comes in, as a written expression of what you do or do not want done.
The Living Will should serve as a guideline for the Attorney in Fact, and is something you should have given to your Attorney in Fact long before it is needed. Most people rely on living wills they get from a bookstore, computer programs, through organizations such as the Concern for Dying in New York or through senior centers. These are generally perfectly valid forms, but they sometimes leave little flexibility beyond what is on the form. Sometimes it is difficult to tailor a pre-printed form to your particular individual tastes and desires. A lawyer can take the language you want in your Living Will and put it in the proper form to make sure ALL of your concerns and desires are addressed. When your Attorney in Fact takes their personal knowledge of your values and combines it with the language of a personally written Living Will, you stand the best chance of having done exactly what you want done.
Isn't the Living Will alone supposed to settle all of that? Doesn't the Living Will tell your doctor or hospital what you want done? Why is anything else needed?
Well, there's a very good chance that the physician treating you when your condition becomes irreversibly terminal will never know of your Living Will, because virtually no one carries their Living Will with them, and loved ones may be unable to even find the Living Will you have prepared. Then there is always the possibility that your particular condition is not covered clearly in your Living Will; it is simply impossible to cover every conceivable combination or events. And some doctors who have taken an oath to preserve live have great personal reservations about disconnecting a patient and allowing them to die.
Tennessee law now requires physicians to either honor your wishes as expressed in a valid Living Will or to transfer you to the care of a physician or health care facility that will honor those wishes. So that is less of a problem than it once was. But if new procedures or equipment are developed which you would not want used but which you did not know of to mention in your Living Will, or if the language of your Living Will still leaves some "gray area" about what you would want done in a given situation, then something more is needed.
That "something more" is a Durable Power of Attorney for Health Care, which gives to a person you trust the power to make health care decisions for you when you are incapacitated and no longer able to make such decisions.
You may have heard of a Power Of Attorney before -- it's essentially a document giving another person (called an "Attorney in Fact") the power to act on your behalf. But there are two different types of durable powers of attorneys. The first is a power of attorney that goes into effect when it is signed. The second is a power of attorney that "springs into effect" on a given event, usually when a person becomes disabled, meaning your attorney in fact has no authority until and unless you become disabled and unable to handle your own affairs; this is what an Attorney in Fact for Health Care is. It's also possible to combine in one person springing powers of attorney both for health care and also for the other matters you are likely to need help with if you're hospitalized. Or you can split the powers so that the neighbor you trust can take care of your mail and handle your bills and utilities; the son or daughter who has good business and investment sense can take care of your investments; and your spouse or closest relative or personal friend handles your health care decisions. If the document granting the power is written right, you can do almost anything you want in granting decision-making authority to other parties.
Through a Durable Power of Attorney for Health Care, you can even name the person you want to serve as your conservator or guardian or the guardian of your estate, if you ever become a ward of the court.
Generally, unless a Power of Attorney document is written otherwise, the power and the authority of an Attorney in Fact end as soon as the person granting the power is disabled or incapacitated. Unfortunately that is often precisely the time a person most needs someone else to act for them, to pay and collect bills, get needed records, deal with mail, shut off utilities, to do any of the million and one things which could cause us serious problems if left unattended during a period of hospitalization.
Even if you are young and in good health, there are major benefits of a Durable power of Attorney for Health Care. Suppose you are in a serious accident leaving you temporarily unconscious. You legs are crushed and the doctors need to operate immediately. If they try to save use of your legs, they will probably succeed -- in fact 60% of the time they would expect you to regain full use of your legs after rehabilitation, but there is also a 20% chance they will fail and your legs will be useless... and the remaining 20% of the time the complications of the surgery will end up killing you. Or they could take a more conservative approach which would leave your legs useless, but there would only be a 5% chance you would die from the surgery. Or you surgical team could take an even more cautious approach and amputate one leg, save the other leg but not so it would be useful, and you would have virtually no chance whatsoever of death.
Now, this is clearly a situattion where someone would need to make a quick decision... but you would not be conscious to make it. If you've prepared a Durable Power of Attorney for Health Care, you have named another person who can make that decision.
How do you revoke a power of attorney or a Living Will? If you have them written for you, you can revoke them however you want to be able to revoke them, even having them automatically revoke simply by the passage of time. You simply write it into the document.
What do you do with a Durable Power of Attorney document or a Living Will once you've prepared them? Do NOT simply put them in a drawer and assume signing them took care of everything. Give copies to your physician, to your close relatives who would be contacted if anything happens to you, to your lawyer, and to anyone affected by the document, such as your bank if you have named someone to have power of attorney for your banking. Definitely give copies to the person you name as your attorney in fact, and also put a copy in with your important papers.
How do you find a lawyer who can prepare a Living Will or a Power of Attorney document? Nearly any lawyer can handle a Living Will or draft a power of attorney. They are fairly simple documents. Some lawyers who have little familiarity with them may name another lawyer, but finding a lawyer should be no problem whatsoever.
How much will a lawyer charge? That can vary widely, depending on how often a lawyer works with them... and how much the lawyer wants to work with them. It could be as little as $25 per document. Some lawyers may deal with Living Wills or powers of attorney almost on a "loss leader" basis, the way grocery stores do when they sell milk at less than it costs the store but count on you buying other groceries to make up the difference. Other lawyers may charge even more to prepare such a document than they charge on an hourly fee basis. Anything more than $250 should tell you the attorney hates to prepare living wills or powers of attorney and is only willing to do so if you pay enough to overcome his distaste.
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