So Mom or Dad has named you as their financial power of attorney and patient advocate. You will be handling financial and medical decisions for Mom or Dad if they are unable.
Mom or Dad has told you that it is all taken care of. But is it? Do you know what decisions that Mom or Dad want you to make? Do you know where everything can be found?
If you have been named as a power of attorney or patient advocate for Mom or Dad, you should discuss it with them. Review the financial and health care powers of attorney with them before those documents are needed. You should know where the powers of attorney and other records are kept and have access to them. You may want to keep your own copies of the powers of attorney. It does not do Mom or Dad any good if they have put their documents in the gun safe or safety deposit box to which you have no access.
If you think that Mom or Dad will ever need nursing home care (nearly 50% of seniors do), review their financial power of attorney. If Mom or Dad would rather give assets to each other or the children instead of the nursing home, make sure there is a power of gifting. If the financial power of attorney does not allow for gifting or limits gifting, then there may be certain asset protection plans that may not be available if nursing home care is required. This may result in the spend-down of Mom or Dad’s assets on the nursing home care before they can apply for Medicaid to cover nursing home costs.
I regularly see even recently drafted financial powers of attorney that either have no power to gift, have gifting limited to the annual Federal gift tax exclusion amount or have limited gifting to a previously commenced gifting program. For the most flexibility and ability to protect the most assets, the power of gifting should be very broad and should also allow gifting to the power of attorney agent.
When you are reviewing the health care power of attorney with Mom or Dad, there are certain powers that you want to make sure are included. Some of these powers are relatively new in Michigan; others have just never made it to the forms.
You should be able to have access to Mom and Dad’s medical records and be able to authorize release of those records to other health care providers or insurance companies. These are called HIPAA authorizations and releases and are allowed under the Health Insurance Portability and Accountability Act. You are probably familiar with these types of documents because they are the privacy forms that you usually sign at the doctor’s office or when admitted to a hospital. It is usually best if these HIPAA powers are effective immediately upon signing to allow access to medical records even if Mom or Dad are not incapacitated.
You should also know what Mom or Dad’s wishes are with regard to end-of-life decisions, such as when to pull the plug. Does Mom or Dad want to be kept alive if they are in a persistent vegetative state or irreversible coma? If Mom or Dad is terminally ill, do they want artificial means to prolong the dying process? When the burdens of treatment outweigh the benefit, do Mom or Dad want artificial means to be used to keep their body alive? Do Mom or Dad consider receiving nourishment or hydration through a tube or breathing with a machine as artificial means? If Mom or Dad has a “do not resuscitate” order, make sure that order has been signed by their doctor.
Do you have authority to make mental health care treatment decisions? A patient advocate only has the authority to make mental health care treatment decisions if there is a specific grant of that power.
With an anatomical gift or organ donation, Mom or Dad should have given you the power to authorize the anatomical gift and to resolve any conflicts between that gift and other powers in the health care power of attorney.
Make sure all the patient advocates have signed their acceptances of appointment. You do not want to be scurrying around trying to get signatures at a time when you could be taking care of Mom or Dad.
What are Mom or Dad’s wishes with regard to their funeral? Do they want to be cremated, buried, or have their entire body donated to a university or medical school? Is there a preference for the visitations or the funeral?
These and other general matters regarding Mom or Dad’s wishes should be discussed in advance. By having these discussions, you know what your duties are and you will be able to make decisions when needed. If there is a decision to be made whether to put Mom or Dad on life support, you usually do not have time to schedule an appointment with the attorney to review the documents to determine Mom or Dad’s wishes. It is best if you had those discussions with Mom or Dad ahead of time.
For example, at dinner last Christmas, my dad and step-mother brought up some of these very issues. Neither of them want to be kept alive artificially in certain circumstances. Neither of them want to be a burden on the family. They said not to be surprised if one of them goes into a nursing home if the other one is unable to care for them at home. In addition, they did not want us to hesitate to place them in a nursing home if care for them became burdensome.
You have both a moral and a legal duty to follow Mom or Dad’s instructions in their powers of attorney. It is better to know what your duties are ahead of time so you are not scrambling trying to figure things out when decisions have to be made.
Over the years, I have seen many decisions made for people that were contrary to written instructions because the decision had to be made before the agent was able to fully review the documents. The agent did not become aware of the deceased’s wishes until long after the decision had to be made.
You do not want to cremate Mom or Dad only to find out that they wanted a traditional coffin burial or that they wanted their body donated for education or research. You do want to know what your duties are before you need to make decisions for Mom or Dad.
By: Matthew M. Wallace, CPA JD
Published edited January 24, 2010 in The Times Herald nwespaper, Port Huron, Michigan as: Know parents’ wishes before making decisions