Durable Power of Attorney and Health Care Proxy
1. Does everyone need a power of attorney and health care proxy?
Absolutely.
These documents allow you to designate who will make decisions for you should you become incapacitated. Without them, it may be necessary for your family to become your legal guardian to the probate court which can be time consuming and expensive.
2. Could I be held liable for my actions as attorney-in-fact?
Yes, but only if you act with willful misconduct or gross negligence such as stealing money from your principal. If you do your best and keep your principal’s interest in mind as the basis of all your actions, you will not incur any liability.
3. When does the power of attorney take effect?
Unless the power of attorney is “springing”, it takes effect as soon as it is signed by the principal. A “springing” power of attorney takes effect only when the event described in the instrument itself takes place. Typically, this is the incapacity of the principal as certified by one or more physicians. Section III of your power of attorney indicates whether it is effective immediately or is springing. In most cases, even when the power of attorney is immediately effective, the principal does not intend for it to be used until he or she becomes incapacitated. You should discuss this with the principal so that you know his or her wishes.
4. What if there is more than one attorney-in-fact?
Depending on the wording of the power of attorney, you may or may not have to act together on all transactions. In most cases, when there are multiple attorneys-in-fact they are appointed “severally”, meaning that they can each act independently of one another. Nevertheless, it is important for them to communicate with one another to make certain that their actions are consistent.
5. Can I be fired?
Certainly. The principal may revoke the power of attorney at any time. All he or she needs to do is send you a letter to this effect. The appointment of a conservator or guardian does not immediately revoke the power of attorney. But the conservator or guardian, like the principal, has the power to revoke the power of attorney.
Contact an attorney at Cohen & Oalican, LLP who is skilled and experienced in this area.
Showing posts with label health care proxy. Show all posts
Showing posts with label health care proxy. Show all posts
Sunday, April 11, 2010
Sunday, December 6, 2009
UPC and Health Care Proxy/Living Will
Welcome to the final article in the series covering Uniform Probate Code
B. Health Care Proxy/Living Will
A health care proxy is a document by which a client (the principal) may give another person (the agent) the authority to make health care decisions should the principal become incapacitated. In contrast to the proxy, a living will is a client's written statement as to specific treatments the client would or would not want initialed. M.G.L. c.201D §2. On December 18, 1990, in response to the U.S. Supreme Court decision of Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990), Massachusetts passed the Health Care Proxy statute providing that "[e]very competent adult shall have a right to appoint a health care agent by executing a health care proxy." M.G.L. c.201D, §2. In the Cruzan decision, the U.S. Supreme Court respected the intentions of Nancy Cruzan who prior to an accident that left her in a vegetative state, had written her specific intention not to be kept alive by artificial feeding. Some form of living will or health care proxy statute exists in nearly every state, including the District of Columbia.
Health care proxies are vitally important when a patient is incapable of giving instructions to medical professionals, especially if the patient is being kept alive by life support systems that is not consistent with the patient's values. The proxy will permit the agent to order the withdrawal of such life support. A proxy is also important if there should be a disagreement among family members since it appoints one individual to represent the patient. Alternates should be named in the event the first person appointed cannot serve for any reason. To avoid potential conflicts of interest, no operator, administrator, or employee of a facility that is providing care for the principal may serve as a health care agent, unless he or she is related to the principal by blood, marriage, or adoption. M.G.L. c.201D §3.
It is best that the health care proxy also include a medical directive giving the principal's agent guidance on what the principal wishes would be done in a given situation. More capacity is required to give medical directives than is required simply to delegate decision-making authority. These medical directives enable a principal to ensure that his or her own wishes regarding treatment decisions are respected. If the principal's family ever has to make these difficult decisions, their burden will be eased by the expression of a principal's wishes provided by a directive.
According to M.G.L. c.201D §2, health care proxies must be in writing and signed by a legally competent adult. Two witnesses must be present to attest that the principal appeared to be at least 18 years old, of sound mind, and under no undue influence. Unlike a typical power of attorney which is immediately effective, a health care agent is only authorized to make decisions when an attending physician has certified in the medical record that the principal can no longer give their informed consent.
In order to ensure that the principal's wishes are respected regarding health care decisions, it is important that they have a candid conversation with their agent to make sure their values are understood. In addition, copies of the health care proxy should be kept with the principal's personal records and a physician should have one filed with the patient's medical records.
The role of the health care proxy continues to be clarified. Specifically, since Rogers v. Commissioner of the Department of Mental Health, the use of health care proxies has become controversial in the administration of antipsychotic medication. The Rogers court ruled that if a patient is not capable of giving their informed consent, health care professionals cannot administer antipsychotic medication without first obtaining court authority to do so. This rules applies even if the patient was accepting the medication.
More recently, the Massachusetts Supreme Judicial Court held that the Massachusetts health care proxy statute allows an agent to commit a principal to a mental health facility providing the principal does not object. (Cohen v. Bolduc, SJC 08554, 1/11/02)
This case also implies that a health care agent has authority to assent to any medical treatment for his or her principal, including treatment with antipsychotic medication. However, if the principal is objecting to the treatment, this is taken as a revocation of the proxy regarding that treatment. In that event, the agent would have to obtain court authority.
In addition, according to a letter from the Office of the Attorney General, a health care agent may consent on behalf of an incompetent patient to the administration of antipsychotic medication without a Rogers hearing. If, however, a patient refuses or objects to the administration of antipsychotic medicine, a court-issued judgment is required, regardless of the existence of a health care proxy.
In 2009 the Uniform Probate Code clarified that decisions made by a health care agent take precedence over those made by a guardian. In addition, a guardian cannot revoke a health care proxy without obtaining court authority.
Problems sometimes arise if a patient has a health care proxy in place, is incapacitated and is disagreeing with decisions made by their agent. As stated above, the patients refusing treatment can be taken as a limited revocation of the proxy, at least as it pertains to that particular situation. As an alternative to commencing a guardianship proceeding, an agent under a health care proxy can file in probate court a petition to affirm that the health care proxy is valid and that the patient is too incapacitated to make medical decisions.
Health care proxies and living wills are often confused. As stated above, the health care proxy appoints a person to make medical decisions on their behalf. A living will on the other hand, expresses an individual’s wishes regarding specific treatment decisions. The health care proxy is the more important of the two documents. Living wills may be helpful to determine the client’s wishes but they are not legally enforceable by themselves. Clients should avoid living wills which attempt to create an exhaustive list of medical scenarios reflecting their wishes on all treatment situations. If the client lists one hundred situations, the agent may face a situation that is not listed. In that event, the health care provider may be left with the impression that since the patient did not specifically list the treatment that may not have wanted to give their agent authority to make that decision. On the other hand, it is important for clients to clarify their wishes regarding treatment decisions. The healthcare proxy can be drafted to include “medical directive” language. A medical directive describes in broad general language what the clients wishes are regarding treatment. Because the directive is general rather than specific, the health care agent can apply it to any situation they face.
This series has been brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
B. Health Care Proxy/Living Will
A health care proxy is a document by which a client (the principal) may give another person (the agent) the authority to make health care decisions should the principal become incapacitated. In contrast to the proxy, a living will is a client's written statement as to specific treatments the client would or would not want initialed. M.G.L. c.201D §2. On December 18, 1990, in response to the U.S. Supreme Court decision of Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990), Massachusetts passed the Health Care Proxy statute providing that "[e]very competent adult shall have a right to appoint a health care agent by executing a health care proxy." M.G.L. c.201D, §2. In the Cruzan decision, the U.S. Supreme Court respected the intentions of Nancy Cruzan who prior to an accident that left her in a vegetative state, had written her specific intention not to be kept alive by artificial feeding. Some form of living will or health care proxy statute exists in nearly every state, including the District of Columbia.
Health care proxies are vitally important when a patient is incapable of giving instructions to medical professionals, especially if the patient is being kept alive by life support systems that is not consistent with the patient's values. The proxy will permit the agent to order the withdrawal of such life support. A proxy is also important if there should be a disagreement among family members since it appoints one individual to represent the patient. Alternates should be named in the event the first person appointed cannot serve for any reason. To avoid potential conflicts of interest, no operator, administrator, or employee of a facility that is providing care for the principal may serve as a health care agent, unless he or she is related to the principal by blood, marriage, or adoption. M.G.L. c.201D §3.
It is best that the health care proxy also include a medical directive giving the principal's agent guidance on what the principal wishes would be done in a given situation. More capacity is required to give medical directives than is required simply to delegate decision-making authority. These medical directives enable a principal to ensure that his or her own wishes regarding treatment decisions are respected. If the principal's family ever has to make these difficult decisions, their burden will be eased by the expression of a principal's wishes provided by a directive.
According to M.G.L. c.201D §2, health care proxies must be in writing and signed by a legally competent adult. Two witnesses must be present to attest that the principal appeared to be at least 18 years old, of sound mind, and under no undue influence. Unlike a typical power of attorney which is immediately effective, a health care agent is only authorized to make decisions when an attending physician has certified in the medical record that the principal can no longer give their informed consent.
In order to ensure that the principal's wishes are respected regarding health care decisions, it is important that they have a candid conversation with their agent to make sure their values are understood. In addition, copies of the health care proxy should be kept with the principal's personal records and a physician should have one filed with the patient's medical records.
The role of the health care proxy continues to be clarified. Specifically, since Rogers v. Commissioner of the Department of Mental Health, the use of health care proxies has become controversial in the administration of antipsychotic medication. The Rogers court ruled that if a patient is not capable of giving their informed consent, health care professionals cannot administer antipsychotic medication without first obtaining court authority to do so. This rules applies even if the patient was accepting the medication.
More recently, the Massachusetts Supreme Judicial Court held that the Massachusetts health care proxy statute allows an agent to commit a principal to a mental health facility providing the principal does not object. (Cohen v. Bolduc, SJC 08554, 1/11/02)
This case also implies that a health care agent has authority to assent to any medical treatment for his or her principal, including treatment with antipsychotic medication. However, if the principal is objecting to the treatment, this is taken as a revocation of the proxy regarding that treatment. In that event, the agent would have to obtain court authority.
In addition, according to a letter from the Office of the Attorney General, a health care agent may consent on behalf of an incompetent patient to the administration of antipsychotic medication without a Rogers hearing. If, however, a patient refuses or objects to the administration of antipsychotic medicine, a court-issued judgment is required, regardless of the existence of a health care proxy.
In 2009 the Uniform Probate Code clarified that decisions made by a health care agent take precedence over those made by a guardian. In addition, a guardian cannot revoke a health care proxy without obtaining court authority.
Problems sometimes arise if a patient has a health care proxy in place, is incapacitated and is disagreeing with decisions made by their agent. As stated above, the patients refusing treatment can be taken as a limited revocation of the proxy, at least as it pertains to that particular situation. As an alternative to commencing a guardianship proceeding, an agent under a health care proxy can file in probate court a petition to affirm that the health care proxy is valid and that the patient is too incapacitated to make medical decisions.
Health care proxies and living wills are often confused. As stated above, the health care proxy appoints a person to make medical decisions on their behalf. A living will on the other hand, expresses an individual’s wishes regarding specific treatment decisions. The health care proxy is the more important of the two documents. Living wills may be helpful to determine the client’s wishes but they are not legally enforceable by themselves. Clients should avoid living wills which attempt to create an exhaustive list of medical scenarios reflecting their wishes on all treatment situations. If the client lists one hundred situations, the agent may face a situation that is not listed. In that event, the health care provider may be left with the impression that since the patient did not specifically list the treatment that may not have wanted to give their agent authority to make that decision. On the other hand, it is important for clients to clarify their wishes regarding treatment decisions. The healthcare proxy can be drafted to include “medical directive” language. A medical directive describes in broad general language what the clients wishes are regarding treatment. Because the directive is general rather than specific, the health care agent can apply it to any situation they face.
This series has been brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Monday, November 23, 2009
Cohen & Oalican discuss Elderlaw Planning and the UPC
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code cont'd
ADVANCED DIRECTIVES
There are simple steps that clients can take while they are healthy to ensure that their wishes regarding their finances and health care decisions are respected in the event that they become incapacitated by illness.
A. Power of Attorney
In 1990, the Massachusetts legislature enacted the Uniform Durable Power of Attorney Act, enabling Massachusetts' citizens to execute a court recognized durable power of attorney. Since then, 27 other states, including the District of Columbia and the U.S. Virgin Islands have adopted durable power of attorney statutes based on the Uniform Act. A power of attorney is a document that allows a client to appoint an individual to act as the client's agent ("attorney-in-fact") on financial matters should the client ever become incapacitated. Given the broad authority typically granted under a power of attorney, it is obviously important that the client be confident that the agent will act in accordance with the client's wishes.
There are few formalities to creating a power of attorney. However, it makes sense to have the power of attorney notarized so that it can be used to transfer real estate if necessary. Also, as some States require that the power of attorney be witnessed, it makes sense to have witnesses so that the document would be honored in other States.
If a client wants to appoint more than one person the client can require that they must act together or permit them to act separately. If you want the agents to be able to act separately, the form must state this explicitly. However, clients should at least appoint alternates to avoid the problem of the attorney-in-fact not being available. In deciding who to appoint the client should obviously consider whether the person is trustworthy. Although, the person does not need to be a financial expert, it makes sense to appoint an agent who has some experience with financial matters and who has the common sense to hire professionals when necessary. Finally, be careful not to appoint anyone who has a history of financial problems. The pressures of debt or other financial strain may cause even the most trustworthy person to use the client’s funds for their own needs.
It is important to be sure that a client's power of attorney is "durable," meaning it remains in effect should a client become incapacitated. M.G.L. c.201B §1(a). To create a durable power of attorney the document must contain specific language referencing that the client's future disability will not effect the power of attorney. M.G.L. c. 201B §1(a). A client should also consider including gift-giving powers which would allow the client's attorney-in-fact to take advantage of estate planning strategies. Without specific language regarding gifting, future gifts made by the attorney-in-fact may be disallowed.
Most powers of attorney take effect when executed, even though the usual intent is for them to be used only in the event of the incapacity of the grantor. A client has the option of executing a "springing" power of attorney that will only become effective when the client's physician signs it stating that in his or her opinion the client has become incapacitated. However, our office has found that banks and other financial institutions don’t like springing powers of attorney as they raise questions of whether the client is really incapacitated. Or a client can enter into an escrow agreement with the lawyer who drafted the document under which they will hold the power of attorney until the client's physician tells the lawyer the client has become incapacitated. Clients always retain the option of directing their lawyer to release the power of attorney.
A client can revoke a power of attorney at any time. All the client needs to do is send a letter to the attorney-in-fact informing them that their appointment has been revoked. The client should also write any financial institution where the power of attorney might be used, putting them on notice that the document has been revoked. A conservator or guardian can also revoke a power of attorney, but the appointment of a conservator or guardian does not automaticallyrevoke a power of attorney. In fact, in Guardianship of James A. Smith, 684 N.E. 2d 613 (1997), the court held that a principal's nomination of his future guardian through a durable power of attorney mandates that the court appoint such nominated guardian in the absence of good cause or disqualification.
The attorney-in-fact owes a fiduciary duty to the person who appoints them. M.G.L. c.201B §3
(a). According to the Uniform Probate Code a fiduciary duty consists of a legal duty to: (1) account; segregate assets; make trust assets productive in accordance with a reasonably, prudent person dealing with other people's money; not delegate the responsibility to someone else; and not to self deal. U.P.C. §5-202. It is very important that the attorney-in-fact keeps good records of his or her actions under the power of attorney. Finally, the attorney-in-fact does not have any responsibility to use their own personal funds to pay bills of their principal. However, it is important that whenever the attorney-in-fact signs their name, they always clarify that they are doing so in their capacity as agent rather than individually.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Welcome to the Uniform Probate Code cont'd
ADVANCED DIRECTIVES
There are simple steps that clients can take while they are healthy to ensure that their wishes regarding their finances and health care decisions are respected in the event that they become incapacitated by illness.
A. Power of Attorney
In 1990, the Massachusetts legislature enacted the Uniform Durable Power of Attorney Act, enabling Massachusetts' citizens to execute a court recognized durable power of attorney. Since then, 27 other states, including the District of Columbia and the U.S. Virgin Islands have adopted durable power of attorney statutes based on the Uniform Act. A power of attorney is a document that allows a client to appoint an individual to act as the client's agent ("attorney-in-fact") on financial matters should the client ever become incapacitated. Given the broad authority typically granted under a power of attorney, it is obviously important that the client be confident that the agent will act in accordance with the client's wishes.
There are few formalities to creating a power of attorney. However, it makes sense to have the power of attorney notarized so that it can be used to transfer real estate if necessary. Also, as some States require that the power of attorney be witnessed, it makes sense to have witnesses so that the document would be honored in other States.
If a client wants to appoint more than one person the client can require that they must act together or permit them to act separately. If you want the agents to be able to act separately, the form must state this explicitly. However, clients should at least appoint alternates to avoid the problem of the attorney-in-fact not being available. In deciding who to appoint the client should obviously consider whether the person is trustworthy. Although, the person does not need to be a financial expert, it makes sense to appoint an agent who has some experience with financial matters and who has the common sense to hire professionals when necessary. Finally, be careful not to appoint anyone who has a history of financial problems. The pressures of debt or other financial strain may cause even the most trustworthy person to use the client’s funds for their own needs.
It is important to be sure that a client's power of attorney is "durable," meaning it remains in effect should a client become incapacitated. M.G.L. c.201B §1(a). To create a durable power of attorney the document must contain specific language referencing that the client's future disability will not effect the power of attorney. M.G.L. c. 201B §1(a). A client should also consider including gift-giving powers which would allow the client's attorney-in-fact to take advantage of estate planning strategies. Without specific language regarding gifting, future gifts made by the attorney-in-fact may be disallowed.
Most powers of attorney take effect when executed, even though the usual intent is for them to be used only in the event of the incapacity of the grantor. A client has the option of executing a "springing" power of attorney that will only become effective when the client's physician signs it stating that in his or her opinion the client has become incapacitated. However, our office has found that banks and other financial institutions don’t like springing powers of attorney as they raise questions of whether the client is really incapacitated. Or a client can enter into an escrow agreement with the lawyer who drafted the document under which they will hold the power of attorney until the client's physician tells the lawyer the client has become incapacitated. Clients always retain the option of directing their lawyer to release the power of attorney.
A client can revoke a power of attorney at any time. All the client needs to do is send a letter to the attorney-in-fact informing them that their appointment has been revoked. The client should also write any financial institution where the power of attorney might be used, putting them on notice that the document has been revoked. A conservator or guardian can also revoke a power of attorney, but the appointment of a conservator or guardian does not automaticallyrevoke a power of attorney. In fact, in Guardianship of James A. Smith, 684 N.E. 2d 613 (1997), the court held that a principal's nomination of his future guardian through a durable power of attorney mandates that the court appoint such nominated guardian in the absence of good cause or disqualification.
The attorney-in-fact owes a fiduciary duty to the person who appoints them. M.G.L. c.201B §3
(a). According to the Uniform Probate Code a fiduciary duty consists of a legal duty to: (1) account; segregate assets; make trust assets productive in accordance with a reasonably, prudent person dealing with other people's money; not delegate the responsibility to someone else; and not to self deal. U.P.C. §5-202. It is very important that the attorney-in-fact keeps good records of his or her actions under the power of attorney. Finally, the attorney-in-fact does not have any responsibility to use their own personal funds to pay bills of their principal. However, it is important that whenever the attorney-in-fact signs their name, they always clarify that they are doing so in their capacity as agent rather than individually.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
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