• Lee Franks

Stocking Up Is Not the Only Emergency Plan

Anxiety and uncertainty over the recent pandemic prompted a general rush to prepare for the worst; toilet paper all but disappeared from my local grocery store except for the brief early morning moment when the store opened and the early risers quickly emptied the shelves again. Similarly, long-lasting edibles and certain cleaning supplies quickly became scarce. Regardless of the likelihood of serious illness or death for any given individual, an immediate tangible threat motivates people to make their preparations as quickly. In contrast, we often lack that urgency to plan for much more certain calamities off in future, for example, a debilitating injury, incapacity, or death. In my own case and against my cardiologist’s orders, I found myself late one evening drafting wills and other important papers for my wife and I because I faced emergency bypass surgery the next day. Fear does not always lie, but it often misleads, sometimes spurring us to do something, anything, and other times overwhelming us so that we end up doing nothing at all.

The alarm over the current viral outbreak should remind us all that we live in a wonderful but unpredictable and even dangerous world. Food, shelter, safety, and apparently toilet paper, come first, but preparing for uncertainty requires longer term thinking as well. Most of us have made few arrangements to give our loved ones the legal authority to care for us and our affairs if we become unwell or binding instructions to insure that they carry out our wishes when we pass away. Although one’s particular circumstances or preferences may require more specialized documents and arrangements, most people should have at least a will, financial and medical powers of attorney, a HIPAA release, and a directive to physicians and family. In very brief terms, a description of each follows below, but please note that I strongly urge you to find an attorney to help you to draft and execute them.

Will. Your will directs the distribution of your probate estate upon death. Pay particular attention to that phrase, “probate estate.” Your probate estate does not include property that transfers automatically upon your death, for example, certificates of deposit, life insurance, retirement funds, and assets may have beneficiary designations. Similarly, joint bank accounts and other jointly held property may have survivorship provisions.

Financial Power of Attorney. Generally if you are eighteen or older, no other person has legal authority to help you with your personal and real property, banking and other financial transactions, business operations, or much of anything else. By giving someone financial power of attorney, you enable that person or persons to act for you either out of necessity or for your convenience, but that person has no control over you, serves at your pleasure, and may act only in your interest and not in his or her own. The power of attorney ceases upon your death.

Medical Power of Attorney. Unless you become incapacitated or unable to give your informed consent to treatment by medical professionals, you always make your own medical decisions. Therefore, the medical power of attorney names an agent to make medical decisions for you if you cannot, but it does not give your agent the authority to admit you to a facility or to impose medical treatment on you against your will. Like the financial power of attorney, the authority granted ceases upon your death.

HIPPA Release. If possible, you should always name at least one alternate agent in your financial and medical powers of attorney, and that brings up another issue. The agent named in your medical power of attorney may have the right to speak with your medical providers and access your medical records, but no one else does, not your alternate agents, not your immediate family. A HIPAA Release and Authorization goes a long way to solving this problem. HIPPA stands for the Health Insurance Portability and Accountability Act, which contains protections for patient privacy. The people named in the document have no decision-making authority, but each may obtain information from your medical providers and access medical records.

Directive. Finally, a directive to physicians and family instructs your caregivers how to treat you if you become 1) incapacitated and have a terminal condition, or 2) permanently and completely incapacitated and require some form of life-sustaining treatment such as a feeding tube or mechanical breathing assistance. Please understand that a Directive to Physicians and Family or Surrogates is NOT a DNR or Do Not Resuscitate order. Generally, a DNR prohibits health care professionals from taking steps to restart your breathing or your heart if either one should quit. On the other hand, a directive provides guidelines to your caregivers when and if either of the above, briefly described circumstances arises.

And the disclaimer:

All information offered here is educational and does not constitute advice or endorsement of any particular course of action. Complex information is presented here in summary form which necessarily represses multiple details and nuances. And, you are not my client until I agree to represent you, in what capacity that representation will occur, and the scope of the representation will be.

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