MAKING CRITICAL DECISIONS. POWER OF ATTORNEY VS. THE ADVANCE MEDICAL DIRECTIVE

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1 Union County Surrogate, James S. LaCorte This office is dedicated to educating the public. I have made it my goal to keep the residents informed about issues acted upon by this office. Functions of the Surrogate s Court Probate Wills Process Adoptions Process complaints for incapacitated matters Process contested probate matters Film and record all probate proceedings Invest minor s funds Appoint Guardians for Minors Act as Clerk of the Superior Court MAKING CRITICAL DECISIONS. POWER OF ATTORNEY VS. THE ADVANCE MEDICAL DIRECTIVE Union County Surrogate James S. LaCorte 2 Broad Street Elizabeth, NJ Union County s web site has valuable information for you and your family. and the senior resource directory Some other helpful websites for medical and legal information Having the right tools to meet the challenge. National Library of Medicine and National Institute of Health. State of New Jersey. Department of Health AARP, prepare-to-care-lores.pdf 12 The Union County Surrogate s Court 2 Broad Street, Elizabeth, NJ

2 It has been my pleasure over the years to bring you as much informative information as possible. It has come to my attention that a number of residents do not have a document that would allow a family member, significant other or friend to act on their behalf if they should not be able to issue medical directives should the need arise. I have prepared this booklet for your use to help you understand the sometimes complex issues involved with writing an advanced medical directive. These materials are provided for information only and do not constitute legal advice. It is advisable that you consult with a health care professional and an attorney to make sure that your directive accurately reflects your intentions. No two cases are the same. You need to ask yourself; Do I need a Medical Power of Attorney or do I need a Power of Attorney to let someone act not only for my wellbeing, but also for my assets and interests? Giving someone you trust the authority to speak or act on your behalf in case of accident, illness or injury, to transact your business and make decisions for you is a very important decision and should not be made lightly or without advanced planning. Speaking with family members and loved ones is a good place to start. If it is you and your spouse and your assets are shared, they would be able to pay bills and obtain cash. If it is you and a child or children, your needs are going to be different. Access to banks, write checks and deposit funds would all have to be available. Once you have spoken to your family; have a conversation with your attorney and physician. They would be able to give you professional and legal advice which you should not get second hand. If you would like to have additional information on Wills and Estates, please contact my office and we will be more than happy to send you information. You may also visit us on the internet at Do you have minor children that need to be protected? You are on your way home from work, you are a single parent, there is an accident, you get hurt and you can no longer make decisions for yourself let alone any minor children. What happens? Do your parents or siblings get Guardianship of the Minor Children? Understand that biological (on the other side) grandparents, aunts, uncles all have standing as family members. That means that your ex-partner s family may have standing to get custody or guardianship over any minor children that you cannot care for even if they are no longer in your lives. Living in foreign countries and distant states could have a big impact on your children and other family members. Making sure they are protected is vital even if you are incapacitated for only several months. Guardianship vs. Custody The courts distinguish guardianship from custody. Custody is granted by the Chancery Division, Family Part and is often a temporary situation that involves the physical placement of a minor, usually for the purpose of residency or placement in school. Custody does not have the same type of parental relationship that is established with guardianship. Once guardianship is established, the guardian can make medical, financial and legal decisions for the minor. The guardianship can only be terminated with a court order from a Superior Court Judge or the minor s attainment of age 18. Make sure you have the necessary documents that will ensure that your loved ones are kept together and provided with a secure environment if something should happen. One never knows if he or she will make it home from work, the store or around the block. Taking the extra step to provide your family with this security is essential. The cost is minimal and the guardian(s) will be your choice. 2 11

3 How Prepared Are You for the Unexpected? What happens when suddenly your loved ones become unable to make decisions for themselves? Do they have a Power of Attorney appointing someone to act on their behalf? Do they have medical advanced directives? It s not always about elder adults; it could happen to anyone at any time. A freak accident could leave an adult child incapacitated. An illness could render someone unable to make medical decisions. How prepared are you to handle these circumstances? My suggestion to everyone is to seek the help of a knowledgeable attorney to make sure you have the necessary tools to handle most of these situations. It could effect your future and the future of you loved ones. Two documents everyone should have: A last Will and Testament, and A Power of Attorney It s not always elder adults who need guardianships. The Union County Surrogate wishes to make everyone aware of the necessity to have important legal documents. However, when the need arises the courts are there to help. A sudden surfing or motorcycle accident could incapacitate you, physical and emotional disabilities are not uncommon. Having the necessary documents to protect you and your family members will help. The courts are very strict on who can act, if there are assets involved and if proper care can be given. If there should be a sudden need for a guardian the courts in the process will appoint an attorney to protect the person who allegedly cannot act for themselves. The process may include someone being appointed to handle you financial, business and personal affairs. It may require that whomever is going to act be bonded for the amount of your estate. Having any kind of real estate, investment portfolio or assets will be determined by the Judge and whether there is a need for a Surety Bond. If there is no next of kin or friend to become the guardian the court may require that the Office of the Public Guardian become involved. Strict rules govern the court proceedings during the process. Giving someone you trust the authority to speak or act on your behalf. Proxy Directives One way to have a say in your future medical care is to designate a person you trust and give that person the legal authority to decide for you if you are unable to make decisions for yourself. Your chosen proxy (known as Health Care Representative) serves as your substitute, standing in for you in discussions with your physician and others responsible for your care. By a proxy directive, we mean written directions that name a proxy to act for you. Another term people use for a proxy directive is a durable power of attorney for health care. Instruction Directives Another way to have a say in your future medical care is to provide those responsible for your care with a statement of your medical treatment preferences. By instruction directives, we mean written directions that spell out in advance what medical treatments you wish to accept or refuse and the circumstances in which you want your wishes implemented. These instructions then serve as a guide to those responsible for your care. Another term some people use for an instruction directive is a living will. Combined Directives A third way combines features of both the proxy and the instruction directive. You may prefer to give both written instructions, and designate a health care representative or proxy to see that your instructions are carried out. So by a combined directive, we mean a single 10 3

4 document in which you select a health care representative and provide him or her with a statement of your medical treatment preferences. A time to plan To help plan your course of action, you need to address certain items first. Whichever form you choose, it is important to remember to discuss your health care preferences with others. In order to help you choose the kind of directive which best suits your circumstances, the following pages answer some frequently asked questions about advance directives. Hospital and medical institutions often ask if you have a medical directive when you enter their facility. A brief definition of medical terms. Artificially provided fluids and nutrition: The provision of food and water to seriously ill patients who are unable or unwilling to eat. Depending on the method used, such as insertion of a feeding tube or an intravenous line, and the condition of the patient, techniques may involve minor surgery, continuous supervision by medical and sometimes surgical personnel, risk of injury or infection, and side effects. Define your support group. Spouse, children, nieces/nephews, siblings? It depends on your situation and location. Do you have or anticipate specific health needs? Do you have business concerns to worry about? What is the financial impact for you and your family? Talk about your personal finances. Find caregiving services and support groups if you are diagnosed with a specific ailment. Consult the professionals. Define your goals and needs. Will you return to your home at some point; go to Assisted Living or a Nursing Home? Who will take care of your home? Personal Care? Transportation? Bills? Cardiopulmonary Resuscitation (CPR): A treatment administered by a health care professional when a person s heartbeat and breathing stops. CPR may restore functioning if administered properly and in a timely fashion and may include the use of mechanical devices and or drugs Life-sustaining measures: Any medical procedure, device, artificially provided fluids and nutrition, drugs, surgery, or therapy that uses mechanical or other artificial means to sustain, restore or supplant a vital bodily function, thereby prolonging the life of a patient. 4 Should you look at long term care or facilities like hospice? There should also be given consideration to the individual or individuals who will provide any of these services. Will they have to take time from families or work? If it s your spouse, are you placing all the burden on them? There are support groups out there that you can talk to if you have time to prepare. You will need to discuss your personal business with the individual who will be handling everything. Make a list, from house insurance, car care, pharmacy, doctor, home cleaning agency, religious affiliations and social groups. Respite care may be something else you want to talk about if this is going to be home hospice or a long recovery period. And last but not least, you should update your Last Will and Testament, because when you die, the power of attorney dies with you. At that point, your Last Will and Testament will determine who will inherit and administer your estate. 9

5 Professional Help is necessary to get it done right. Both your Medical Directive and your Power of Attorney should you choose to have one should be done only by a legal professional. Your document should set forth the powers that an agent can and cannot exercise unless the power of attorney expressly authorizes such actions. This is especially true if you are the only one with access to your financial and business matters. It is a legal document used by an individual to name someone else to act on the principal s behalf. To be useful as an incapacity planning tool, a POA must give broad authority to the agent. There are times when we need a trusted family member or friend to step in when we are not able to make our own decisions These legal documents should be filed with the County Clerks Office where an official record is on file. The County Clerk would need an original for the filing you should provide additional copies which they will certify for their records. Before anyone does a Power of Attorney or Medical Directive they should understand the potential for misuse of authority. A power of attorney can take many forms which is why you need the help of a professional to discuss the powers and limitations of these documents. Terminal Condition: The terminal stage of an irreversibly fatal illness, disease, or condition. While determination of a specific life-expectancy is not required for a diagnosis of a terminal condition, a prognosis of a life expectancy of one year or less, with or without the provision of life sustaining treatment, is generally considered terminal. Persistent Vegetative State: A condition of permanent unconsciousness in which the patient loses all capacity for interaction with their environment or other people. It is usually caused by an injury to the brain. It is normally not regarded as a terminal condition and with the aid of medical care, artificial fluids and nutrition, patients can survive for many years. Incurable and Irreversible Chronic Diseases: Disabling diseases such as Alzheimer s disease, organic brain syndrome or other diseases which get progressively worse over time, eventually resulting in death. Depending on the disease, the patient may also experience partial or complete loss of physical and mental abilities. Because the rate at which these diseases advance may be slow, such diseases are not considered terminal in their early stages. Health care representative or health care proxy: In the event an individual loses decision making capacity, a health care representative or proxy is a person who has been legally designated to make decisions on his or her behalf. A health care representative appointed through the execution of a proxy directive (a durable power of attorney for health care). Whole Brain Death: Death due to total and irreversible loss of all functions of the entire brain, including the brain stem. The criteria of whole brain death must be used to accurately determine death in individuals who have suffered massive or total brain damage but whose heart and lungs are kept functioning by machines. Brain dead individuals are not vegetative or in a coma, but are in fact dead. 8 5

6 Health care directives should only be active if you are incapacitated or incapable of speaking Your directive takes effect when you no longer have the ability to make certain decisions about your health care. This judgment is normally made by your attending physician, and any additional physicians who may be required by law to examine you. If there is any doubt about your ability to make such decisions, your doctor will consult with another doctor with training and experience in this area. Together they will decide if you are unable to make your own health care decisions. If you regain your ability to make decisions, then you resume making your own decisions directly. Your directive is in effect only as long as you are unable to make your own decisions. In this document, it is up to you to say what your health care representative can and cannot decide. You may wish to give him or her broad authority to make all treatment decisions including decisions to forego life-sustaining measures. On the other hand, you may wish to restrict the authority to specific treatments or circumstances. Your representative has to respect these limitations. Your health care representative has the legal right to accept or refuse medical treatment, including life sustaining measures, on your behalf and to assure that your wishes concerning your medical treatment are followed. Your doctor is legally obligated to consult with your chosen representative and to respect his or her decision as if it were your own. Your health care representative may consult with other family members in making decisions, and if you wish, you can direct that he or she should do so. It should be understood by everyone that your representative is the only person with the legal authority to make decisions about your health care even if others disagree. Having discussions with family members and your representative will make it clear what your wishes are if something should happen to you. You should choose a person who knows you well and who is familiar with your feelings about different types of medical treatment and the conditions under which you would choose to accept or refuse either a specific treatment or all treatments. Your representative must understand that it is their responsibility to implement your wishes even though others might disagree with them. You may have a specific condition or circumstance and only you can decide what your wishes should be, however, you should be familiar with the terms that the medical professional will use it may be prudent to consult with your treating physician. Deciding between a Power of Attorney and a Medical Directive. As defined in Blacks Law Dictionary: power of attorney. 1. An instrument granting someone the authority to act as an agent or attorney-in-fact for the grantor Also termed letter of attorney, 2. The authority so granted. Durable power of attorney. A power of attorney that remains in effect during the grantor s incompetency. Such instruments commonly allow an agent to make healthcare decisions for a patient who has become incompetent. General power of attorney - A power of attorney that authorizes an agent to transact business for the principal. Irrevocable power of attorney A power of attorney that the principal cannot revoke Also termed power of attorney coupled with an interest. Special power of attorney. A power of attorney that limits the agent s authority to only a specified matter. 6 7