Forbes Magazine has an interesting article this week on reasons why Boomers should revisit their estate plan. Inspired? Contact us to set up a free 1/2 hour consultation to review your estate plan and see if it is time to make some changes to better match who you and your family are now. Email us at firstname.lastname@example.org or call us at 206-459-1908.
Please join the WSBA ADR Section’s Membership Committee for our third Panel Discussion and Networking Event, Thursday, March 29, 5:30pm at the Red Lion Hotel in Downtown Seattle. We’ll be featuring a panel of experts on the topic of Collaborative Probate. Our panelists are:
Selecting a Health Care Agent
The first step in any good Health Care Disability Plan, and probably the most important, is to choose your Health Care Agent.
A Health Care Agent, also sometimes called a Health Care Proxy, is the person you select to speak for you in a medical crisis, in case you are not able to speak for yourself.
Under Washington State’s default statute for those who do not makes their own plan, spouses or registered domestic partners are given priority in decision making, followed by adult children. However, the ultimate decision maker is the patient’s guardian, if one exists, and family disputes can erupt and health care decisions be delayed if family members or friends attempt to be named guardian when there is a lack of consensus about care.
For those who are single and have either multiple children or no children the need to make it clear who has decision making authority is even more important. In any case, medical crisis decision making usually goes best when the hospital is clear about who the decision maker is and are confident that disputes about who is in charge are not part of the equation.
In naming a health care agent, it is usually easiest to name one person or agent to serve at a time, with at least one successor, or back-up person, in case the first person is not available when needed. However there may be good reasons for selecting more than one person to serve at a time as well, such as a desire to include all of your children.
If you do chose more than one person you will need to include how you want decisions to be made (i.e.. all must agree v. majority rule.) It is also possible to include a request that your primary agent consults with others, be it family members or a close friend with greater medical knowledge, while still leaving only one final decision maker. It may also be possible to name someone you trust who lives near you to serve as a temporary agent until your first choice agent is able to come to the treatment facility if the person you must trust to make ultimate decisions lives far away. An Attorney familiar with disability planning can help you to think through the pros and cons various arrangements and think creatively about solutions to potential problems that might arise.
The following are come important questions to ask when weighting possible agents. Keep in mind that the importance of some of these factors may depend on whether your top priority is having your wishes honored or having your family feel best about the process.
1. Does your agent meet the legal criteria for acting as agent or proxy or representative? (In Washington State, that includes a requirement that the person be at least 18 and not be your doctor or otherwise employed by your health care provider unless they are an immediate family member.)
2. Would your agent be willing to speak on your behalf?
3. Would your agent be able to act on your wishes and separate his/her own feelings from yours?
4. Does your agent lives close by or could they travel to be at your side if needed?
5. Does your agent know you well and understands what’s important to you?
6. Could your agent handle the responsibility?
7. Will your agent talk with you now about sensitive issues and will listen to your wishes?
8. Will your agent likely be available long into the future?
9. Would your agent be able to sensitively handle conflicting opinions between family members and friends?
10. Can your agent be a strong advocate in the face of an unresponsive doctor or institution?
The decision of who you select as your Health Care Agent should be document in a valid Durable Power of Attorney for Health Care which will be discussed in later posts.
If you would like help selecting your Health Care Agent or crafting a Durable Power of Attorney, please call or email now for a free half hour consultation to see if our services are right for you. Tel. 206.459.1908 or email@example.com or attend one of our free classes.
On March 21, 2012, Jamie Clausen will be a half day CLE on Collaborative Probate and Elder Law for the King County Bar Association. If you haven't registered yet, it isn't too late. Other presenters include Jeff Bean, David Strickland, Former Commissioner Eric Watness, Kathleen Wareham, Joanna Roth, and Alexandra Moore-Wulsin.
When:March 21, 2012 12:00 to 4:30
Where: Rainier Square Conference Center, 1301 Fifth Avenue, 3rd Floor Atrium, Seattle
Credits: 3.50 General and .50 Ethics CLE Credits
11:30-12:00 Registration and Coffee Service
Attendees are welcome to bring a brown-bag lunch
12:00-12:15pm Welcome and Overview
Jamie Clausen, Phinney Estate Law, Chair
12:15-12:45pm Making the Collaborative Law Choice
Jeffrey P. Bean, Beyond the Courthouse Mediation
David A. Strickland, Attorney at Law
Alexandra Moore-Wulsin, Strata Law Group
1:45-2:30pm Collaborative Approaches to Classic Probate Conflicts
The Honorable Eric Watness, Jams, King County Superior Court Commissioner (Ret.)
Jamie Clausen, Phinney Estate Law
Kathleen Wareham, WAMS Mediation & Arbitration Panel Member
Alexandra Moore-Wulsin, Strata Law Group
3:15-3:45pm Ethics in Collaborative Probate and Elder Law
Joanna Roth, Attorney at Law
4:30pm Evaluations and Adjournment
In past posts we have talked about the situations that might arise that would require someone else to make health care choices for you if you couldn't give informed consent and the kind of choices that they might have to make. In upcoming posts we will discuss how to plan to have the right person make these choices and how to make sure they get enough instruction to do the job well. But before we get to that, we thought it would be helpful to explain what happens if you don't make a plan. In Washington those choices are governed by Statute, specifically RCW 7.70 which is commonly known as the "consent statute."
Under Washington law, if the patient is incapacitated and cannot understand and/or communicate to give informed consent to give or decline a medical treatment, your medical provider must turn to someone else to make that decision. Washington has a statute that gives a list of people who can provide that consent. RCW 7.70.065
That statute states that members of the classes of people can provide such consent in the following order of priority:
(i) The appointed guardian of the patient, if any;
(ii) The individual, if any, to whom the patient has given a durable power of attorney that encompasses the authority to make health care decisions;
(iii) The patient's spouse or state registered domestic partner;
(iv) Children of the patient who are at least eighteen years of age;
(v) Parents of the patient; and
(vi) Adult brothers and sisters of the patient.
If the health care provider makes reasonable efforts to locate and secure authorization from a competent person in the first or succeeding class and cannot find that person, authorization may be given by any person in the next class in the order of descending priority. However, no person under may provide informed consent to health care:
(i) If a person of higher priority under this section has refused to give such authorization; or
(ii) If there are two or more individuals in the same class and the decision is not unanimous among all available members of that class.
The people named in the statute are suppose to do what they believe the patient would have wanted if that can be determined. If they cannot determine that, then to do what they believe to be in the patient's best interests.
For people who do not engage in advance planning this statute creates a number of pitfalls.
Without a health care agent named in a proper durable power of attorney, many clients will not have surviving family in any of these categories so that their medical choices can only be made with the appointment of a legal guardian.
The people listed in the statute may not be the right people to make choices for them, especially if they are not close to members of their family of origin or if they have very different opinions from them on issues surrounding health care.
There may be more than one person in the relevant category who do not agree, that is common when parents, adult children, and siblings must make unanimous decisions.
Even if every person in the highest category agrees, family members, friends, or other interested parties can always try to override that decision my seeking to be appointed as the person's guardian, which is what has happened in many of the highly publicized family fights over end of life issues in recent years. Because hospitals know that this can happen, some will want to wait to make decisions in cases without advanced planning until everyone with a possible interest agrees, this can lead to delays in providing or withdrawing care even in cases where no guardianship petition is ever filed.
The decision maker(s) also may have no idea what the client would want them to decide. That can lead to them making the wrong choice or, even if they are making the right choice, experiencing real agony about not knowing that they are.
These problems can best addressed by selecting a health care agent and appointing them in a Durable Power of Attorney for Heath Care and preparing an Advanced Health Care Directive, Advanced Mental Health Care Directive, or POLST as needed.
If you would like more information on how the consent statute might work in your particular case, are having trouble getting a health care provider to honor your role in the statute, wish to file a guardianship because the statute is resulting in the wrong decisions being made, or you want to create a plan to avoid the problems described above, contact us for a free 1/2 hour consultation at firstname.lastname@example.org.
One of the most talked about choices a health care agent may have to make for someone unable to make their own medical choices is whether to keep a patient alive through artificial hydration and/or nutrition.
If a person is unable to consume or keep down food and fluids they must be given liquids directly into their bloodstream and liquid nutrition needs to be put directly into their stomach through a feeding tube to keep them alive. This isn’t food and drink in the way that we normally experience it.
Hospice workers report that when a person is dying, their organs shut down, and they stop feeling hungry or thirsty. Until that time, what makes a person feel thirsty is having a dry mouth, which is remedied by ice chips or other water in the mouth. IV liquid won’t prevent thirst and people on feed tubes rarely would feel hungry without. But these tools are necessary to keep them alive.
While people often take a black and white approach to these tools, the reality is that people often make different choices about them depending on the circumstances. Most people, if otherwise healthy, would want IV fluid if they became dehydrated due to flu or other illness. Many would want both fluids and nutrition if they were in a coma that was potentially reversible at least for a few weeks to see if they would regain consciousness. Most of my clients indicate that they wouldn't want to be kept alive for years through these tools if they were in a permanent conscious condition. But even if the choice changes from condition to condition, I think it is helpful if the agent understand the choice is to prolong life or not prolong life and not a choice of leaving a patient thirsty or starving as they die.
We are pleased to announce the three new charities being added to our Charity Discount Program in 2012. The groups nominated and receiving the most votes by our facebook fans are:
This Blog is written by Seattle Attorneys Jamie Clausen & Michael Ballnik.