—Ready for a health emergency? Are your ducks in a row?— Updated 11/15/2020
Seabeck ducks in lagoon when tide is out
Ready for a health emergency? Are your ducks in a row?
If you or a loved one were disabled by an accident or illness, would the legal tools be available to manage care and finances? There are three documents that could be a big help in those circumstances: a Financial Power of Attorney, a Healthcare Power of Attorney and an Advance Directive (Living Will). Sometimes these documents are combined into one document, but I will discuss them separately. The law governing these documents varies from state to state, so these comments are aimed at those living in the State of Washington.
The Washington Law pertaining to Powers of Attorney is found at: Chapter 11.125 of the Revised Code of Washington. This Chapter was last updated in 2016. It is usually best to use the services of an attorney for preparation of a Financial Power of Attorney because they can be drafted in many different ways and you will want a document which best fits your circumstances. A financial power of attorney allows the person you name to act on your behalf in many different situations, including managing investments and buying and selling real estate, depending on how the document is drafted. It can be drafted so that it is effective immediately and authorizes the agent to exercise all powers indicated in the statute, or you can sign a document which is ONLY effective once it has been shown that you are disabled and then limiting the agent’s power to designated acts. You must be careful how the document is executed to make sure it will be effective when you need to use it. An attorney will make sure it is properly signed and witnessed. If you have decided not to use the services of an attorney or want to view a sample form before consulting an attorney, you can find useful information at WashingtonLawHelp. From that website you can download both the Financial Durable Power of Attorney and the Healthcare Power of Attorney. Both are written in a fairly simple manner and the website provides an explanation of how they can be used. This website was last updated on February 21, 2020 and contains the following information about its sponsor:
This website is maintained by staff at the Northwest Justice Project (NJP). NJP is a not-for-profit statewide organization that provides free civil legal services to low-income people from 18 offices throughout the state of Washington. Each year, NJP assists thousands of people in need of critical legal assistance.
A Healthcare Power of Attorney allows you to name someone to make healthcare decisions for you when you are unable to do so yourself. It is usually a separate document from the Financial Power of Attorney. One reason for this is that some people want to select different agents for these two functions – one to deal with money matters and one to deal with health. That can work well as long as a conflict does not arise concerning the cost of care. It will be important that the person guiding healthcare decisions works well with the person handling the finances so that realistic choices are made. For example, the person supervising medical matters might want to hire 24-hour-a-day nurses to come to the home, but the cost might be prohibitive.
There are practical reasons for having the two power of attorney documents drafted and signed separately. A copy of the financial power of attorney will probably be requested by every bank, insurance company and contractor the agent deals with. It will be easier for all concerned if the document is relatively short, easy to read, and quick to photocopy. The more complicated the document is, the more chance it will create confusion or a need to be reviewed by a supervisor. Also, the Healthcare Power of Attorney may contain personal preferences that an individual might prefer to remain private. The website of WashingtonLawHelp contains a Healthcare Power of Attorney form, but you may also be able to obtain a form from one of your medical providers or one of many organizations that deal with end-of-life planning, such as the Washington Medical Association. Their Healthcare Power of Attorney and Advance Directive (Healthcare Directive) forms can be accessed at: https://wsma.org/advance-directives. Click on the link on the webpage to view, save and print the pdf forms.
The Advance Directive form deserves some introspection before it is executed. It goes by a variety of names such as Living Will or Healthcare Directive. Some people use a form called Five Wishes which covers many of the same issues. The legality of certain end-of-life options vary from state to state, so it can be worthwhile to use the services of local organizations to become educated about options you might want to consider. End of Life Washington is one organization which provides helpful information about medical procedures you might or might not want used: https://endoflifewa.org/choices-and-planning/advance-directives/.
The Advance Directive can be combined with the Healthcare Power of Attorney into one document, but you might want to keep them separate. Not everyone who needs to see the Healthcare Power of Attorney needs to see the details of the Advance Directive. Having a separate and short Healthcare Power of Attorney will make it easier to copy and distribute the Healthcare Power of Attorney form. If you would like to learn more about the differences in commonly used Advance Directives, a comparison sheet is available on the web. It compares the basic statutory form, such as is available from many healthcare providers, to the Five Wishes form, and the more detailed End of Life Washington form.
Some individuals would like their Advance Directive to address special circumstances such as dementia or mental health issues. Washington law addresses those concerns. Chapter 71.32 of the Revised Code of Washington sets forth the law regarding Mental Health Advance Directives. Sample language that you might consider for many special circumstances can be found on the website of Compassion and Choices. For example: dementia, COVID-19. Washington law directs the form of a Mental Health Advance Directive in RCW 71.32.260. Professional advice is recommended before using that form, but looking it over in advance gives you a chance to think through some of the issues. A detailed Mental Health Advance Directive for those with Dementia is discussed in a video on this webpage and a detailed sample Directive is also provided. While you would want healthcare professionals to advise you about use of this form, reviewing it online will provide a preview of the issues you should consider.
Washington State has a Death with Dignity Act which sets forth procedures to follow by persons seeking medication to end their life:
An adult who is competent, is a resident of Washington state, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication that the patient may self-administer to end his or her life in a humane and dignified manner in accordance with this chapter.
Compassion and Choices offers a free workbook to help you work through the issues you might want to address in your end-of-life documents and in conversations with family members and others who will be involved with care decisions. You can download the workbook with this link: https://compassionandchoices.org/end-of-life-planning.
Another form you should be familiar with is the POLST form. Those letters stand for Physicians Order for Life Sustaining Treatment. This is sometimes referred to as a DNR (Do Not Resuscitate) Order, depending on how it is completed. This is a standardized form completed by doctors in consultation with the patient. You can review the form and learn more about it from the website of the Washington Medical Association: https://wsma.org/POLST. This form is commonly used in hospitals and care facilities. It is not routinely completed as part of end-of-life planning, unless the planning is done in conjunction with a physician. The form instructs medical staff what steps to take or not take in providing care, especially in an emergency. Emergency responders will commonly look for this document and other emergency instructions on a home refrigerator door.
Throughout the process of creating these documents and after they are completed it is very important to share the existence of the documents, where they are located, and your intentions with family members and those who will help carry out your wishes. If you find end-of-life discussions difficult, take a look at the following website, which is intended to help families have important conversations: : https://theconversationproject.org.
Are you ready to start planning? Your attorney will help you figure out the documents you need and make sure they are properly drafted. Reviewing the websites linked to this blogpost will help you be better informed about the issues. Conversations with your doctor, friends and family will help you understand the concerns and needs of your loved ones and help you better understand how they are willing to help or what help they might want from you. Workshops and other resources are available from non-profit organizations such as People’s Memorial Association. For a small membership fee, PMA will help you stay informed about and ready for economical cremation, burial, and alternate disposition arrangements when death occurs. Planning is a valuable gift you give to your family, allowing decisions to be made without undue conflict, stress and expense.