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Patricia Annino
Patricia Annino
Put the Oxygen Mask Over Your Own Face First!
Why choosing a healthcare proxy is a far more important decision than who will receive assets at the time of your client's death.

August 18, 2011
by Patricia Annino, JD, LLM

The most important focus of estate planning should not be what happens when your client dies. It should be what happens if that client loses the ability to make their own decisions. Make sure your client has put in place the legal mechanisms so that they can be taken care of in the way the client desires. It is important we all remember what the flight attendant says every time you board a plane — if the cabin pressure cha nges and the oxygen mask falls down, place the mask over your own face first. Similarly, it is only when your clients place their masks over their own faces, that they will have the strength to protect others. In other words, your clients should protect themselves first.

A Healthcare Proxy is a document in which your client gives the authority to an agent to make medical care decisions if they become unable to make them. The document can authorize everything — including minor and routine medical involvement — and can give the agent access to all the client’s medical records. It can authorize someone to supervise your client’s care if they are incapacitated, to consent to have them undergo certain types of treatment or to have them withdraw from treatment; to make hospital or nursing-care arrangements; and to employ or discharge caregivers. It can also empower the agent to make such major decisions as whether or not to terminate your client’s life.

Under federal law, only one person at a time can be named as healthcare agent, but a Healthcare Proxy can name a succession of people as alternatives. This is done so that someone else can take over if, for instance, both spouses are in the same car crash and neither one of them is in a condition to make medical decisions. A copy of the Healthcare Proxy is given to the primary care physician and becomes part of the medical record.

As with a financial Durable Power of Attorney, in the healthcare area, couples usually designate each other to make medical-care decisions and list their children as successor agents. For clients without spouses or children (or who are looking for alternative possibilities), I stress that their healthcare agent be someone they trust, who shares their value system, who is willing to perform the task and who has a clear understanding of what your clients’ preferences are.

It is prudent to update this document regularly and, when it is updated, to make sure that the most recent contact information for those who have been designated to make healthcare decisions (including all telephone numbers and cell phone numbers) are current. The document must be updated if the Healthcare Proxy was executed prior to The Health Insurance Portability and Accountability Act of 1996 (known as HIPPA). Under HIPPA, if your client does not expressly waive their right to privacy in writing, hospitals and physicians do not have the legal right to speak with the healthcare agent or to release medical information to that person.

Choosing a Healthcare Agent

This important person may have different titles in different states (such as “healthcare agent,” “health proxy,” “patient advocate,” “attorney-in-fact,” “healthcare representative” or “health surrogate”), but the responsibilities are the same. The official requirements for healthcare agents vary from state to state, but most states simply specify that the person be an adult (over 18) and must be someone who does not work for your client’s healthcare provider or for an adult-care facility in which your client is residing.

It is good to designate both a healthcare agent and a successor agent (choice #1 and choice # 2), in case your client needs help at a time when the agent they have chosen is not available. Your client has to decide which of their children to choose and if they have no spouse or children, which friend or relative to choose.

In order for your clients to choose a healthcare agent wisely, it would be helpful for them to establish a basis for evaluating potential candidates. That evaluation should include the following criteria:

  1. Religious beliefs: Since the concept of withholding artificial-life supports runs contrary to the teachings of several religions — most notably the Catholic Church — it is helpful to find a healthcare agent who shares your client’s religious beliefs and their position on right-to-die issues.
  2. Willingness to take on this task.
  3. Strength to act on your client’s wishes and speak out on their behalf (even if faced with doctors, institutions or family members who disagree).
  4. Communication: They are comfortable speaking with your client about sensitive issues and capable of listening to and absorbing what it is that your client wants.
  5. Separation: This is a person who can differentiate between their feelings and your client’s and is able to do what your client wants done.
  6. Proximity: This is someone who either lives close or could travel quickly to be there when needed.
  7. Availability: This person is likely to be accessible and capable of performing tasks well into the future.
  8. Personal Understanding: The person knows your client well enough to intuit what is important to them.
  9. Negotiation skills: The person can mediate conflicts between family members, friends and medical personnel.

Figuring Out What You Want
The following questions, which I suggest you pose to your clients, are designed to help your client know themselves and to form a basis for discussion with the person your client chooses to execute their healthcare power of attorney:

  1. The Pleasures of Health: How essential are these capabilities to your happiness? (i.e. are they vital, important, mildly important or not important):
    1. Walking
    2. Enjoying the outdoors
    3. Eating, tasting
    4. Drinking
    5. Reading
    6. Attending religious services
    7. Listening to music
    8. Watching television
    9. Avoiding pain and discomfort
    10. Being with loved ones
    11. Touching
    12. Being self-sufficient
  1. Fear Factors: What are your biggest concerns about the end of your life?
  2. Spirituality: How much of your comfort and support comes from religion? From personal prayer? From interaction with clergy?
  3. End of life: If you had the power to decide, what would the last day of your life be like? Where would you be? With whom? What would you be doing? What would your final words be?
  4. Assistance Preferences Worksheet: It is useful to discuss with your healthcare agent (and family members as well) the types of assistance you might want, should you need help and to revisit this issue from time to time, because your preferences could very well change. Looking at each of the different scenarios spelled out below, think through what your preferences would be by asking yourself the following questions:
    1. Would I still want to live at home?
    2. Would I want caregivers hired to help me out in my home?
    3. Would I want to be taken to a rehab or assisted-living center?
    4. Would I want family members to care for me?
    5. Would I want to live with one of my children?
    6. Would I want one of my children or a relative to live with me?
    7. Would I want my healthcare agent to make these decisions for me?
    8. Would my answers differ if my spouse were still living at home?
  If you were unable to drive a car ___
     
  If you were unable to climb stairs ___
     
  If physical problems prevented you from being able to dress yourself ___
     
  If you had to use a wheelchair because you were no longer able to walk __
     
  If you were unable to leave your home ___
     
  If your vision was seriously impaired ____
     
  If your hearing was seriously impaired ___
     
  If you needed kidney dialysis ___
     
  If you needed chemotherapy ____
     
  If you were in physical discomfort most of the time ___
     
  If you could no longer control your bladder ___
     
  If you could no longer control your bowels ___
     
  If you could not think clearly ___

Conclusion

The more your clients take the time now not only to think through who they wish to choose as a Healthcare Proxy, but also how they would want various future scenarios to be addressed by that person, the more likely their wishes will be honored in the future.

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Patricia M. Annino, JD, LLM the Estate Planning practice group at Prince, Lobel Tye LLP. She is a Fellow of the American College of Trust and Estates Counsel.

* The AICPA’s PFP Section provides information, tools, advocacy and guidance to CPAs who specialize in providing tax, retirement, estate, risk management and investment advice to individuals and their closely held entities. All members of the AICPA are eligible to join the PFP section. For CPAs who want to demonstrate their expertise in this subject matter apply to become a PFS Credential holder.