FAQ: Does my Health Care Agent need to be local?

There is no legal requirement that you health care agent be someone who lives near you.  However, filling that role long distance can be a challenge so finding someone who lives nearby is always a plus.   But location is just one factor among many.  

When considering distance it is important to remember that the real issue with distance is how quickly they could be at the health care facility interacting directly with the doctors providing your care and giving meaningful directions.  Factors for that could include travel time but might also include how much notice they would need to leave their job and family responsibilities in a crisis.  A single sister with a flexible job in San Francsico might be a better bet on that front that a single mom with young children in Pasco who can't get off work without several weeks notice. 

It is also important that you don't let this factor alone trump all the rest.  It should be the best person serving in this role not only the closest.  If in doubt, it is possible if working with an attorney to have an interim agent appointed who can serve until the best agent can be at the care center.  That might be a local friend or family member who could be in communication with the permanent agent and be gathering information and making imminent decisions until the agent can really assess the situation on their own. 

If you have questions about how to select and assign the best health care agent for your unique situation, please contact us for a free 1/2 hour consultation at (206) 459-1908 or [email protected].

Earlier this month, Division II of the Washington State Court of Appeals issued a published opinion in the trust administration case of Casterline v. Roberts.  

The case involved an adult daughter who had been named as the trustee of her mother's revocable living trust.  She used her role as trustee to spend a large sum of her mother's money to purchase property and build a house for herself with the stated but never realized intention of having her mother live with her. 

Upon the petitioning of the mother's other children, a professional guardian was assigned for the mother who sought to put a lien on the house to recover the mother's money only to find that the daughter had already transferred the property and her other real estate to her husband and brother-in-law via quit claim deed for no consideration.  The court allowed the guardian to put the lien on the home anyway under a theory of fraudulent transfer and found that the homestead exemption did to apply to the home because it was bought with ill gotten resources.  The daughter appealed and the court upheld the lower court's decision.

While much of case focuses on the ins and outs of liens and exemptions, it also contains some good reminders about the meaning of fiduciary duty that can be helpful to anyone serving as a trustee or attorney-in-fact for a parent. 

It is not uncommon in our experience for aging parents to prefer to live with adult children if possible over living in a nursing home or other institutional setting and that often involves costs to the children that can properly be paid for by a trust or through a power of attorney but only with great care - which was not taken in this case.  The court found that if the daughter had really intended to have her mother live with her she should have segregated her mother's funds from her own and protected her mother's interest by providing her with a secured interest in the house - which would have prevented the very kind of self-serving transfer the daughter later engaged in.  While court isn't specific, it appears that to avoid the breach the trustee could have either put the trust directly on the title of the property to reflects its percentage investment or could have been given a promissory note backed by a deed of trust. 

Moreover the court makes it clear that any self-dealing and co-mingling of assets can be a breach of fiduciary duty that would result in a fiduciary being removed even if the money is eventually replaced as the trust suffers no losses.  All to often we find that people get "sloppy" with powers of attorney and revocable trusts because, unlike guardianship or court supervised trusts, there are usually not annual accountings or reports that need to be affirmatively produced for the court each year.  That lack of oversight is part of why these are less expensive ways to assist a disabled loved one but it should not be viewed as permission to cut corners by creating joint accounts, failing to keep keep funds segregated, or failing to keep adequate records of spending.  The facts of the Roberts case suggest that this fiduciary did not have her mom's best interests at heart and clearly should have been removed. But we have also seen very well intentioned and loving adult children get challenged and even removed from their parents' care because family conflict erupts and they have not bee doing a good job of keeping funds separate and accounted for.  

If you are serving as a trustee, attorney-in-fact or other fiduciary and what advice how to best protect you and your loved ones, please call us to schedule a consultation at [email protected] or (206) 459-1908. If you are concerned that you or a loved one is being taken advantage of by a current fiduciary and want to understand your options for responding, please contact us as well. 

Does my Health Care Agent need to be a member of my family?

Absolutely no!  While family members are the default decision makes for individual who do not make a plan for health care planning before they become disabled, the statute in no way favors family for the appointment of health care agents in their plan. 

While it is most common in our practice to see client appointing spouses, registered domestic partners, adult children, and siblings we also frequently see clients appointing friends, unmarried partners, and even professional fiduciaries to fill these roles.

Reasons to appoint non-family members vary.  Some clients do not have family.  Others have family but they are distant from them either geographically or emotionally.  They may have create families of choice that are different from their legal family but who are their true support system.  Some just want to spare their family the burden of making end of life choices. Whatever the reason, an appointment of non-family members is always only allowed and frequently appropriate. 

We frequently encourage clients to look beyond family, particularly when the only possible family members are parents.  Making the choice to end treatment for your adult child is difficult for a parent even when it is obvious to others that it is the choice the child would make if they could choose.  It may be fairer to that parent to place someone else in the position of making that ultimate choice.

If you would like to discuss options for your health care planning, schedule a consultation at 206-459-1908 or [email protected].

NPR is doing a great series on families dealing with the care of elderly family members.  While the series focuses on a variety of legal, financial, and emotional issues, I was pleased to see their advice that families make their first step being setting up Durable Powers of Attorney with the help of legal counsel.  I do find that the lack of those documents creates the most fundamental problems for families trying to deal with both long term planning and emerging crisis.

Yes.  You can select as large a group of agents as you choose.  Some clients choose to select all of their adult children to serve as their health care agents. 

Many attorneys actively discourage their clients from selecting more than one agent at a time because it has the potential to make decision-making in crisis more difficult.  If there is more than one agent serving at any given time than there is always the possibility that they may disagree and/or give conflicting instructions. 

There are typically two solutions of to this problem.  One is to pick an odd number of agents and allow a majority of agents in agreement to overrule a minority that disagrees.  This allows for a relatively streamlined way for disputes to be settled.  The alternative is to require consensus among all the agents for all decisions.  The advantage of requiring consensus among agents is that it requires families to come to a joint decision and take joint responsibility for those decisions.  Otherwise there is a risk that one agent for example, one your adult children may simply be out-voted about the decision to try a treatment method and may harbor resentment against the other agents or even blame them, instead of your health crisis, for your death. 

Such resentments can, of course, still come up if you choose to make just one child an agent in the first place but, in our experience, they tend to be magnified if the minority opinion child has been given the agent role in the first place just to find that they are, in fact, powerless to make actual decisions.  Resentments can also be magnified where one of the agents has always felt a bit ganged up on by the others such as a black sheep sibling.  And it is almost always the child who is most geographically distant and/or emotionally distant from the parent who is the least likely to face the reality of a terminal illness or hopeless medical crisis.  They have simply had less time and information to come to terms with the situation and have had the least time to say their good byes or to achieve the sort of emotional closeness that they had hoped would eventually come with time. 

The disadvantage of requiring consensus is that it may take a while for the agents to agree among themselves or mediate their disagreement.  During that time you may either not be getting treatment that the majority of your agents think you should get or be getting treatment that the majority think should have been suspended.  In the end, it is possible that time, nature, and/or science may make the decisions for you while your family fights it out.  In addition, if everyone must agree then everyone needs to be in the loop and probably at the treatment facility.  For people whose agents have busy careers, competing family demands, or live far away that can become somewhat of a logistical nightmare.

We usually recommend that if consensus is required that it be the consensus of the agents present at the treatment facility in order to preserve some flexibility for the family.  But that may result in someone getting left out of the loop and out of the decision-making.  To a certain degree the decision about number of agents and methods of decision making may come down to how you balance in your own mind your desire to preserve family harmony and have everyone feel empowered in the process versus your desire to have your wishes respected or the best decisions made. 

In our experience, it works best if you can select one agent to serve at a time.  Other close family members or friends should, if possible, know who the selected agent is, and, if possible, have that choice communicated to them in as loving and affirming a way as possible.  (For example by explaining that the choice was not based on a lack of trust or love for the other possible agents but selected was based on who was able to come to the most doctors appointments with you now so that they would be ready in a crisis or who has the most medical experience.) 

Ideally all close family members should be given copies of your health directive as well so that they know what choice you have made and have an opportunity to process them and ask questions if necessary.  You may also want to talk to your selected agent and communicate any desires you might have about how they should informally consult your other family members and even your willingness to have decision-making slowed down to allow people to come to consensus where possible if that is your priority.  If you do decide that having more than one agent is what is best for your family, and frequently it is, you need to take extra care to draft an advance health care directive that will provide guidance.  Relying on one person’s best judgment is hard enough.  Relying on two people’s best judgment gets even more tricky.

If you want assistance drafting a Durable Power of Attorney for Health Care that best meets your needs, contact us for a free consultation at [email protected] or tel. 206-459-1908.

While there are many special considerations in drafting advance health care directives for people over 65, the language of your durable power of attorney for health care will likely look very similar to one drafted for someone younger. 

The main differences may be the considerations of the age and health of your agents.  Often people select spouses, siblings or close friends of their own age to serves as their agent.  That may still be the best selection for your first and perhaps second choices. 

However, it is important to remember that as we age the chances of our developing dementia or suffering a stroke that limits our ability to update our plans statistically increases.  That means that it may become difficult, if not impossible, to update your planning documents as agents in your own age group develop similar health issues. 

If you have selected a parent or other older friend or relative, it may be time to make a replacement. It may also be time to add a second back up agent and to try to select some younger that you.  It may be time to consider adult children, nieces or nephews, or children of close friends. 

As with any selection of agents you should make sure that they are going to be willing to have a frank conversation with you about your wishes and will be available to serve in the role.  You should also begin to more regularly review your documents so that you can make corrections if any of your selected agents pass away or develop health conditions that would limit their ability to serve. 

It may also be time to start thinking about being more open with your agents about your health than you might have been in the past.  If you are primarily relying on adult children to serve as your agent, you may need to start sharing health information that you would otherwise choose to keep private.  Without solid information, too often children have an unrealistically rosy view of their parent’s health and that may lead them to make less than ideal choices if a crisis strikes and they have been out of loop.

Yes!  It is common to think of a durable power of attorney of health care as something only needed as people get older and face chronic health problems.  But the truth is that, for the young, temporary disability is the crisis they are mostly likely to face and one most in need of proper planning.  Statistically, if you are under 65 years of age, you are six times more likely to become disabled than to die. 

The young can face life threatening illness such as cancer that often involve periods of treatment that may necessitate others making medical choices for them and that can come out of the blue.  They are also the age group most likely to be in accidents such as car accidents or sports accidents that can render them unconscious and in need of medical care.  Even an eighteen year old who has left home to attend college can very easily find themselves in a car accident or in a serious sports injury.  Therefore it is important that the young and healthy consider taking the time to prepare a Durable Power of Attorney. 

Moreover, as they do the planning they should think of the decisions and decision makers they would want now, not merely when they are old and chronically ill.  We usually recommend that our younger clients draft their documents with an eye to decisions that they would want made over the next ten years if they were in an accident or struck with a sudden illness.  We remind them they can and should review their documents and make changes as they grow older and/or are diagnosed with a serious illness.