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What Is A Medical Power Of Attorney And What Does It Do?

Attorney Cheri Dorsey continues our series on estate planning basics, defining the role advanced directive plays in our overall healthcare and estate plans.

Transcript

Tim Maurer:

Tim Maurer, we’re back with another episode of Ask Buckingham, a video podcast, designed to bring clarity in the midst of confusion by connecting your great personal finance questions with straightforward answers from industry thought leaders. Today’s question will be answered by Cheri Dorsey an estates and trust attorney at the firm she co-founded, Sessa and Dorsey. And Cheri of the three most important documents in estate planning, a will, a financial power of attorney and a medical power of attorney, one of the most confusing is that last one, the medical power of attorney. What are they and who needs them?

Cheri Dorsey:

Tim, a medical power of attorney document is the document wherein you name a healthcare agent. So the person that can make healthcare decisions for you if you were unable to. Keep in mind that as long as you can express your wishes, your doctor is always going to rely on your decisions. They will never go to anyone other than you, as long as you can express that.

Cheri Dorsey:

But in situations where say, unfortunately, you’re unconscious, maybe your mid surgery, whatever the circumstance may be, a doctor needs another person to go to if you’re unable to express those wishes or make decisions. So it’s very important that you actually name a healthcare agent. There are the next of kin laws that provide that a doctor will go to next of kin generally, unless there’s an appointment of a healthcare agent. And the truth is in a lot of families, next of kin may not be the best person to be making decisions. That really highlights the importance of an appointment of a healthcare agent or medical power of attorney document.

Tim Maurer:

For sure. So who needs these documents? Who should be thinking about having one?

Cheri Dorsey:

Everyone. Everyone who’s an adult. And the reason I say that is because most people don’t think about it, but as soon as your child reaches age 18, they need a medical power of attorney document too. That’s something that we are really highlighting with our clients, now as the HIPAA laws became more enforced. It’s now very obvious that if your child, for instance, goes to college and you’re paying all their expenses and they’re living off of your dime, if they’re 18, you have no right to their medical information, unless they give you that power. And so every person, but especially keeping in mind that if you want some insight into your child’s health situation, your 18 year old child should be signing a medical power of attorney document.

Tim Maurer:

Okay. So what about the concept of a living will, is that the same thing as a medical power of attorney?

Cheri Dorsey:

It’s actually different. I will tell you that in some states it’s included in the medical power of attorney document. And for instance, in Maryland, we call the living will an advanced directive and the advanced directive is part of the same document. The difference for a living will is that it’s basically what people think it is, which is dealing with end of life situations. Expressing your wishes, as far as the treatment you would want to receive in various scenarios. So it basically comes down to what people think of as the difficult pull the plug question. If I’m in an end of life situation, what kind of treatment would I want to receive at that time?

Tim Maurer:

So you’re in a world of precedent, that’s for sure. Are there are any preceding cases involving this concept of the medical power of attorney and advanced directives, living will that come to mind? That could give us a good example.

Cheri Dorsey:

Certainly. I think the one that comes to mind most often is the Terri Schiavo case which was down in Florida many years ago. And unfortunately what resulted was a big dispute between the parents of Terri Schiavo and the husband of Terri Schiavo. She was in a persistent vegetative state and in that state, you really could live for a very long time on a feeding tube, for years in fact. We could live, you and I, everyone could live with no brain activity in a persistent vegetative state, if you received feeding tubes. And so that was the main question and for all of us to think about. Is that really the quality of life that you want to have and how does that affect your family if you’re in that state for an extended period of time?

Tim Maurer:

Yeah. And one of the things I noticed as I started completing this document for the first time myself many years ago was these are not easy questions. I mean, you’re answering questions about hydration and feeding tubes. It’s almost like we’re not really qualified in some ways it feels like to make these determinations. What counsel might you give us in coming around to making these decisions? What process might we follow?

Cheri Dorsey:

Yeah, they are difficult questions for sure. The way we handle it first of all, is we send the document to the client first so they have plenty of time to read through the options. So we never are asking the client to make a sudden or abrupt decision in our presence. They have time to talk with our spouse about how they feel about it, et cetera.

Cheri Dorsey:

I also generally tell clients that you’re going to use this to help your family by expressing your wishes. But there is some truth to the fact that in real life situations, doctors are also going to be listening to other people in the room, right? End of life situations. So if you have a living will that says, “Look, I really don’t want any life sustaining treatment,” but all of your family members are there saying, “I want to keep whomever alive so that someone can fly in to visit,” doctors are going to take all of that into consideration. So the document truly isn’t as black and white as people think. It’s really more of a guide. I tell clients, I know these are difficult decisions. It’s hard to imagine your family in that situation. The goal is just to do the best that you can and hope that it provides some clarity to your family.

Tim Maurer:

Sure. And the only thing worse than having to make these decisions right now is someone else having to make them in the heat of the moment. I mean, how challenging would that be if you’re called to answer questions like this without a document that has kind of preconceived those answers. So once you have this document written, how does the doctor or whatever medical authorities even know it exists?

Cheri Dorsey:

Sure. Well first of all, I always recommend that clients provide a copy of the document to their general practitioner or family internist so there should be something on file with the doctor’s office. Make sure that your family members know that you have that document and frankly who your estate attorney is because we always have copies of those documents as well. Thirdly, if you’re going into the hospital for any kind of procedure, they will ask, do you have a living will. You should always make sure that you go in. You never know what might happen when you go into the emergency room or for a surgery. Have that document with you and make sure it’s put in your medical record.

Tim Maurer:

Excellent advice, Cheri. Thank you so much. And thank you for tuning into this episode of Ask Buckingham. If you have a question that you’d like to see us address, you can do so by navigating to the website, askbuckingham.com or by emailing your question to question@askbuckingham.com. Or just click in the upper corner of the screen, it’ll take you directly to the website.

Tim Maurer:

Remember that there are no dumb questions, especially in this arena of estate planning, but unfortunately there are plenty of poor answers out there. Our hope is that in giving you straight answers to your questions, it will bring a sense of calm and allow you to apply what you’ve learned in pursuit of good decision making. So please follow us and by all means, Ask Buckingham.

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