Understanding the different kinds and goals of these directives; and having a general knowledge of and ability to discuss the various considerations we might address in the process adds value to any senior advisor and helps the advisor’s client.
Together with Jane Barton, MTS, MASM, CSA , Cardinal Life, LLC, President (Healthcare), I will have the opportunity to discuss these matters with attendees in a breakout session of the 2013 CSA Conference in Orlando (August 7-9, 2013).
We will primarily deal with living wills, health care surrogate designations and durable powers of attorney. A living will expresses your wishes about the kinds and extent of medical treatment you would like in certain specified circumstances, e.g. whether you are in an end stage condition, terminally ill or in a persistent vegetative state.
A health care surrogate designation names who you want to make health and medical decisions on your behalf if you cannot speak for yourself; and provides guidance to the surrogate about what is important to you and how you might have decided for yourself given the opportunity.
A durable power of attorney is a power of attorney that generally remains effective even after you become incapacitated. It is a grant of rights and powers to someone you designate to act for you in business, financial and even health matters. It also provides guidance to your agent or attorney in fact (the surrogate named by you in the power) about what is important to you in these matters so they can best accomplish your overall wishes.
A power of attorney differs from a trust to a large extent in that a trustee (the person administering the trust) has authority to deal only with assets that have been transferred to the trust. While a trustee’s actions must be consistent with the purposes of a trust, the trustee has distinct obligations to the trust beneficiaries and may not necessarily be guided by what he/she thinks you might have done in any given circumstance. There are multitudes of trust types, purposes and issues attendant to trust administration. While the use of powers of attorney is not without necessary regulation and issues, they are sometimes viewed as a less expensive method of planning.
Effective preparation and use of these documents enables you to protect your right to self–determination and to maintain control of how you are treated by health care providers and others despite your (future) incapacity, i.e. if you can no longer speak or act for yourself. In the event of future incapacity without these documents, it is possible that a court will ultimately name a guardian to act and make decisions for you. The judicial determination of who will be designated as guardian and what decisions the guardian makes can adversely impact family relationships and deplete assets.
Thorough advance consideration of these issues encourages people to think about what is important to them, how they want to be treated and what they want to leave behind. It is an opportunity for the advisor to become knowledgeable about what may be important but not considered without assistance; and to participate in a network of care and information providers such as accountants, lawyers, institutional and home health care providers, clergy and spiritual advisors that might be able to help clients in making important decisions.
By adequate planning and preparation, you have an opportunity to let family, friends and loved ones know your philosophy and preferences. This general topic is often referred to as incapacity planning. This does not sound like a very attractive topic to some elders who might fear the loss of personal control or the expense of planning. However, the advisor should be able to clearly communicate how planning allows the client to actually take and maintain control of how they and their property are to be treated in the event they can no longer speak for themselves. This helps not only to maintain personal integrity; but also to preserve family harmony.
Blog posting provided by George H. Aslanian, Jr., Esq.
George is speaking at the 2013 CSA Conference in Orlando, Florida, August 8th and 9th, 2013. Visit his session descriptions below:
Advance Directives – Cross Disciplinary Networking Opportunities
How to Address Common Business Challenges