All of our plans include health care directives. Why? Because incapacity planning is an incredibly important, and often overlooked, aspect of estate planning.
The health care documents we recommend, and include in every plan, are: Medical Power of Attorney, Living Will (also known as Advance Directives,) and HIPAA Authorization.
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The Medical Power of Attorney serves as your authorization for another person, known as the “agent,” to make all medical decisions for you. In Colorado, unless limited by the power of attorney document, the agent under the medical power of attorney is authorized to make any medical decision that the principal could make if the principal were mentally competent to do so.
This means that your agent has a great deal of authority and responsibility. Selecting an agent should be done with care and serious thought. It is not the place to “honor” a family member or friend, nor should anyone feel pressured into choosing a particular person, even if it’s your own spouse, whose judgment or demeanor does not match your wishes.
Everyone! Colorado law does not name a hierarchy of persons who can serve as the patient’s agent. This means if a patient presents at a hospital and has no Medical Power of Attorney on file, the hospital staff must try to reach an “interested person.” This can be a spouse, parent, child, relative, or friend. It is that person’s responsibility to reach out to all the other interested people and derive a consensus on who should serve as an agent.
In an emergency, decisions must be made very quickly, and those decisions might touch on some of the most personal beliefs a person can have about topics such as when life ends, what constitutes extraordinary medical treatment, when life-extending medical treatment is worth the cost, and when diminished quality of life justifies the cessation of life-sustaining medical treatment.
Even families that get along well with one another can quickly find themselves at odds over irreversible, life-or-death decisions that need to be made quickly. For families that don’t get along well, or for blended families, in which the stakeholders may not have ever been particularly close with one another, this can be a highly combustible situation. Everyone should have a medical power of attorney to help navigate unpredictable moments such as these.
When choosing a medical agent, we recommend choosing someone who is cool in a crisis and knows you well enough to know how you feel about receiving medical treatment. We also recommend having at least one alternate agent in case the first choice is unable, or unwilling, to act. More is better, but given how personal the subject of medical treatment is, it can often be difficult to create a long list.
Many of our clients ask us about naming co-agents (two or more people who must act together to make medical decisions), often because they don’t want any of their kids to be left out of such important decisions. We almost always recommend against creating such an arrangement. Medical professionals prefer to have only one person to whom they can go for decisions, and having co-agents creates a potential for dispute.
The moment a medical provider senses that co-agents might not agree with one another, there is a high probability it will ask the family to get a court order clarifying who has authority to make the needed decisions. The process for getting that court order can be highly contentious and extremely expensive because it almost always requires the participation of lawyers and medical professionals.
If you have multiple people you would want involved and kept up to date on your medical care, consider creating a HIPAA-compliant record release, listing all the people who should be allowed to see your records, talk to your doctors, and receive diagnoses. Those people won’t have decision-making authority, but can at least be part of the conversation.
With our clients’ permission, we store their medical powers of attorney with a third-party provider who can send that document to any medical facility in the world upon request. If you do not have access to such a service, you should provide copies of your medical power of attorney to all medical professionals who keep medical records on you. You should also provide a copy to any hospital, assisted living facility, nursing home, or other medical facility upon admission. If possible, keep a record of facilities and providers to which you gave your medical power of attorney. If you ever change it, it may be helpful to provide updated copies to the same facilities and providers.
We often encourage communication about your estate plan. This is especially important in the medical context because the decisions can vary so greatly from one person to another. It is advisable for principals to discuss their medical issues, feelings, and beliefs concerning medical treatment and other related issues with their agent under medical power of attorney. The entire purpose of appointing an agent under a medical power of attorney is to ensure that medical decisions will be made in accordance with the principal’s wishes and intent. A principal can assist his or her agent considerably by giving the agent guidance on the principal’s values and wishes.
Technically, your medical power of attorney remains in force unless you revoke it, your agent refuses or is unable or act, or you die. We recommend, however, re-executing your medical power of attorney on a relatively frequent basis – maybe every two or three years – even if you don’t think anything has changed. The older your medical power of attorney, the more likely a medical provider will be to question whether it still represents your current opinions and desires. And just like all estate planning documents, it should be reviewed whenever you change your marital status, or when a close family member dies or experiences a significant change in health or life circumstances.
MOST forms, DNRs or CPR directives CANNOT be drawn up by an attorney and must be prepared with your physician. You can find links to the forms here: CO CPR Directive https://www.colorado.gov/pacific/cdphe/cpr-directive-information-colorado-citizens CO MOST Form https://www.polst.org/wp-content/uploads/2012/11/CO-MOST-Form.pdf
If you think it might be time to think through your Colorado Power of Attorney, you can:
- Give us a call at 303-578-2745 to schedule a “Discovery Session” at which we can determine whether our firm would be a good fit for your needs. Or fill out our contact form to have us call you.
- Get a copy of our estate planning checklist to see where you currently stand.
- Learn more by attending one of our free webinars, reading our blog, or watching our videos.