Living Wills, Advanced Directives and Power Of Attorney
There are two primary legal documents used to address heath care decisions and decision making; an Advanced Directive–also known as a Living Will, and a Durable Health Care Power of Attorney. In these documents, you express your choices about the types of medical care you do and do not want to receive during your lifetime and at the end of your life, in case you are unable to make these decisions for yourself at that time. Sometimes these are combined into a single document, but each one has a different focus. As long as you have the capacity to make decisions for yourself, you can change your choices in the documents, at any time. For most people, it is helpful to speak with your medical professional to be sure you understand the implications of accepting, limiting, or refusing medical treatment in specific medical situations. If you are a client of Keystone Elder Law, our attorneys can help you customize these documents to your particular situation.
Durable Health Care Power of Attorney
With this document you designate one or more persons as your Agent to make health care decisions for you when, and only when, you are unable to make them yourself. These decisions may include authorizing medical treatment, admissions to medical facilities, refusing medical treatment, or hiring and discharging medical professionals. In addition, the document authorizes your Agent to have access your private medical information so he or she can help you make your own decisions. This is an extremely important part of the document as a result of the HIPPA medical privacy rules. It is important to discuss your preferences for treatment with the person(s) you designate as your health care Agent, so he or she will know how to represent you. It is also important for your health care Agent to have access to a copy of the document, since you never know when it may be needed.
Living Will
This document applies only in two specific situations: if you have an end stage, terminal medical condition, or if you are in a permanent state of unconsciousness. In Pennsylvania a physician must verify you are in one of these two medical situations before your Living Will can go into effect. Commonly, the Living Will takes effect at the time Hospice can be involved in your care. In your Living Will you can state how aggressively you wish to be medically treated or you can state your wishes to decline treatment if such treatment would only prolong the process of your passing. You may also designate a Surrogate to clarify on your behalf any treatment questions medical professionals may have once your Living Will is active. If you designate a Surrogate, you should discuss your preferences with him or her so he or she knows what you would choose to do if you were able to make the decision for yourself. Finally, your Living Will allows you to specify any anatomical donation (i.e. organ donation) you would like to make after you are deceased. It is important to remember when completing a Living Will that there are no right or wrong decisions; the document is to reflect your personal wishes. If you complete a Living Will, you should give copies to those individuals who would be contacted should you become hospitalized. Because a Living Will only applies to end of life health care decisions, we strongly recommend you have both a Living Will and a Durable Health Care Power of Attorney to properly address your medical treatment decisions in all circumstances.
Of Importance
As long as a patient has the capacity to make his or her own decisions, he or she has the right to accept, limit, or refuse any recommended medical treatment. Some individuals when they are hospitalized do not want to be resuscitated should they suffer an unexpected cardiac or pulmonary arrest. To exercise their right not to be resuscitated they need to speak with their attending physician upon admission and ask for appropriate orders to be placed in their medical record. This process is not part of the Living Will or Durable Health Care Power of Attorney and must be done upon every hospital admission.
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REGISTER HERE for LONG-TERM CARE PLANNINGPower of Attorney
A Power of Attorney can be used to give another person the right to sell a car, home, or other property in the place of the maker of the Power of Attorney. A Power of Attorney might be used to allow another person to sign a contract for the maker of the Power of Attorney (the person who makes a power of attorney is called the “principal”). It can be used to give another person the authority to make health care decisions, do financial transactions, or sign legal documents that the principal cannot do for one reason or another. With few exceptions, Powers of Attorney can give others the right to do any legal acts that the makers of the Powers of Attorney could do them themselves. A General Power of Attorney gives the “power of attorney Agent” or simply “Agent” (the legal name of the person who is authorized to act for the principal) very broad powers to do almost every legal act that the principal can do. When Elder Law Attorneys draft general Powers of Attorney, they still list the types of things the Agent can do but these powers are very broad. People often do general Powers of Attorney to plan ahead for the day when they may not be able to take care of things themselves. By doing the General Power of Attorney, they designate someone who can do these things for them.
Normal Powers of Attorney terminate if and when the principal becomes incompetent. Yet many people do Powers of Attorney for the sole purpose of designating someone else to act for them if they cannot act for themselves. It is precisely when persons can no longer do for themselves that a Power of Attorney is most valuable. To remedy this inconsistency, the law created a Durable Power of Attorney that remains effective even if a person becomes incompetent. The only thing that distinguishes a Durable Power of Attorney from a regular Power of Attorney is special wording that states that the power survives the principal’s incapacity. Even a Durable Power of Attorney, however, may be terminated under certain circumstances if court proceedings are filed. Most Powers of Attorney done today are durable.
Yes. At the time the Power of Attorney is signed, the principal must be capable of understanding the document. Although a Power of Attorney is still valid if and when a person becomes incompetent, the principal must understand what he or she is signing at the moment of execution. That means a person can be suffering from dementia or Alzheimer’s Disease or be otherwise incompetent sometimes but as long as they have a lucid moment and are competent at the moment they sign the Power of Attorney, it is valid even if they do not remember signing it at a later date. At the time it is signed, the principal must know what the Power of Attorney does, whom they are giving the Power of Attorney to, and what property may be affected by the Power of Attorney.
Any competent person eighteen years of age and older can serve as an agent. Certain financial institutions can also serve. There is no course of education that agent must complete or any test that Agent must pass. Because a Power of Attorney is such a potentially powerful document, agents should be chosen for reliability and trustworthiness. In the wrong hands, a Power of Attorney can be a license to steal. It can be a big responsibility to serve as an agent.
For Medicaid
Medicare is health insurance and covers medical services such as physician appointments, therapy, blood tests, x rays, medical procedures and hospitalization. Medicare will sometime pay for rehabilitation in a long-term care facility for a period of 20 to 100 days, but not longer. In long-term care, Medicaid covers the cost of ongoing support services for daily functioning, such as room and board in a nursing home.
Medicaid is a federal program that is overseen by the Center for Medicare and Medicaid Services (CMS). In Pennsylvania, Medicaid is called Medical Assistance and is administered by the Department of Human Services (DHS).
In Pennsylvania, Medicaid funds are not available to pay for assisted living or personal care.
For Medicaid to pay for care in a nursing home, an individual recipient must be determined to need a nursing home level of care by a physician and the local Office of Aging. An individual whose income is not greater than three times the poverty level may keep up to $8,000 of total resources, but may otherwise keep only $2,400. The cash value of life insurance counts as a resource, but one car and a residential home does not count as a resource.
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Keystone Elder Law
At Keystone Elder Law, we believe that the physical, social, legal, and financial considerations of our clients all intertwine. We utilize an interdisciplinary approach to evaluate each area, which allows for the creation of a plan that addresses the concerns of the individual as a whole as well as the family. To this end, our model of practice includes a Care Coordinator (usually a nurse or social worker), whose expertise complements our team of attorneys.
When the road of life is smooth, decisions about legal and financial matters are easy to push aside for “a rainy day.” Planning ahead, however, will allow for more options as you view the map of where you’ve been and where you want to go. Don’t let a crisis limit your choices or derail your plans.
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