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Doctor Directive: Place Important Estate Planning Documents on File

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doctor and patient

Back before COVID-19 made its way to Iowa I had an appointment at the University of Iowa Hospital. Don’t worry, it was nothing serious. Beyond the facility, technology, and the clearly talented health care providers, what impressed me most was the nurse asked if I had a health care power of attorney and/or living will and if I had them on file there. Of course, I got quite excited that the hospital is putting this important part of estate planning front and center as a part of the checkup where they take your vitals and such.

Now, with a pandemic front and center, this often overlooked step in estate planning is more salient than ever. In case you don’t have a helpful nurse to prompt you to take this important step, allow me to issue the reminder.

Once your estate plan is executed you should store it properly, as well as give a copy of certain documents to your doctor(s). Your doctor doesn’t need your entire estate plan on record, but they should have a copy of your health care power of attorney and health/medical-related documents, such as a living will. You should request these documents to be placed in your medical records.

What a Living Will & Health Care Power of Attorney Mean for your Medical Care

What Do YOU Want?

A major benefit of this simple action is that if anything unexpected happens, your doctors and their teams will have your detailed wishes readily available. Giving a copy to your health care provider(s) is especially important in the case where you have been incapacitated (such as in a coma or under anesthesia) and want a specific person (like a spouse, adult child, or sibling) to be able to important decisions on your behalf. You want there to be no question as to whom you trust to make those decisions. You also want there to be no questions when it comes to personal choices regarding things like blood transfusions and being kept alive on machines.

Health Care Power of Attorney: What it is & Why you Need it

Access to Medical Records

When the health care power of attorney goes into effect, your designated representative will also have access to your medical records (which would otherwise be undisclosed due to HIPAA rules). If your doctor has your power of attorney on file, there will be significantly less red tape to your representative accessing essential information.

Remember Revisions

If you make revisions to your estate plan documents, such as who your designated health care representative is or specifics included in your living will make sure you give the updated version to your doctor’s office. You don’t want them operating off of an old version if an emergency occurs.

5 Scenarios for Estate Planning Revisions

Questions about estate planning? Think it may be time to update your health care power of attorney document? Don’t hesitate to contact me. Want to get started? A great place to start is with this free, no-obligation estate plan questionnaire.

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Pop Quiz: How Much do you know about this Important Estate Planning Document?

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doctor holding stethoscope

Take a break from whatever you’re doing for entertainment during these socially distant days to test your knowledge on how much you know about health care power of attorney—a particularly important estate planning document. Because I’ve never particularly enjoyed tests (who does?), I’ll give you a hint; all the answers can be found in this recent blog post:

Health Care Power of Attorney: What it is & Why you Need it

To make things even easier, all of the statements below are either true or false.

1. An estate plan is a set of legal documents to prepare you (and your family and loved ones) for your death or disability.

2. There are six basic legal documents that nearly everyone should have as a part of an estate plan:

3. A health care PoA is a legal document that allows you to select the person (your “agent”) that you want to make health care decisions on your behalf, if and when you become unable to make them for yourself.

4. Once your health care PoA goes into effect (typically most people elect to have this be the case only if an attending physician certifies you are unable to make medical decisions independently), your agent will then be able to make decisions for you based on the information you provided in your health care PoA.

5. If there are no specifics in your health care PoA relating to a unique situation, your agent can and should make health care decisions for you based on your best interests.

6. The person you select as your health care agent should be someone in whom you have the utmost trust.

7. The agent you select will be able to access your medical records, communicate with your health care providers, and so on.

8. Your health care PoA isn’t just about end-of-life decisions; it can cover many types of medical situations and decisions. For instance, you may choose to address organ donation, hospitalization, treatment in a nursing home, home health care, psychiatric treatment, and other situations in your health care PoA.

9. For people who feel strongly about not wanting to be kept alive with machines, this can be specifically covered in a document that can be part of your health care PoA, known as a living will.

10. If you don’t have a health care PoA and you should become incapacitated to the degree where you are unable to make health care decisions for yourself, your doctor(s) will ask your family and loved ones what to do. Ultimately, if your immediate family members cannot agree on a course of action, they would have to go to an Iowa Court to resolve the matter.

11. Going to court about a person’s medical care is very complicated, time-consuming, and expensive. This is especially true when compared with the convenience of simply putting a health care PoA in place should the need arise.

12. A health care PoA gives you control over how decisions are made for you, and the agent you choose will carry out your wishes.

13. Everyone can have unique issues and concerns when estate planning. It’s completely up to YOU as to what’s contained in your health care PoA. You name the agent(s). You decide what medical decisions will be covered and how. It’s all up to you.

14. Executing a health care PoA is a smart and responsible thing to do.

COVID-19: GFLF Legal Services Still Available & Accessible

All of these statements are true. That wasn’t too bad! How did you do?

Questions about how and why to execute a health care power of attorney document? Don’t hesitate to contact me. Want to get started? A great place to start is with this free, no-obligation estate plan questionnaire.

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No Fooling Around: These Estate Planning Mistakes are Not Funny

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april fool's day balloons

Hopefully, you didn’t get pranked too bad today or misled by a jokester on social media today. But, if you did, happy April Fool’s Day! We all love a good practical joke now and then, but the subject of estate planning is definitely not one to laugh at. If you already have an estate plan in place, that’s fantastic, but don’t let an old or inadequate estate plan make a fool out of your life, property, and legacy.

Review Your Estate Plan

Let this lighthearted April Fool’s day actually serve as a reminder to review your current documents and determine if you need to consider updated language, additional provisions, or a different strategy (like “upgrading” from a basic will to a trust). When revisiting your estate plan consider these common mistakes I see when reviewing folks’ less-than-optimal documents.

Happy Pi Day: The One Constant in Estate Planning is Change

Living Trusts Missing Retirement Plan Lingo

Many people have a valid portion of the estate assets investing in retirements plans like IRAs and 401(k)s. The mistake comes when people designate their revocable living trust as the beneficiary of these plans, but the trust hasn’t been written or updated to grant the trustee the power to manage the accounts placed in the trust. Without vesting this power in the successor trustee (presuming the testator was the initial trustee and then passed away), the trustee can lack the ability to properly deal with the plan assets and unfavorable income tax consequences can occur.

Uncertain if your revocable living trust properly contains the requisite retirement plan lingo? Simply check with an experienced estate planning attorney and invest in amending.

Retirement Benefit Plans and Charitable Giving

Outdated Living Wills

Also known as an “advanced medical directive,” your living will should contain the appropriate Health Insurance Portability and Accountability Act of 1996 (more commonly referred to as HIPAA) language. (HIPAA involves privacy and who can and cannot have access to your medical records.) If your living will was drafted pre-2001 (before Congress passed new rules governing the Act) it likely doesn’t contain the essential references to HIPPA. I’ve even seen some living wills written well after 2001 that didn’t have the proper provision. It may sound silly, but without this “magic” wording, your designated health care representative won’t have access to your medical records. Without this access, they may not be able to fulfill their duty in making the most informed decisions regarding your health care as possible. This mistake can be especially important if you’ve designated someone other than a close relative (such as a spouse or adult child) as your agent.

6 Things Iowans Should Know About Health Care Power of Attorney

Underfunded Living Trusts

Another mistake I’ve seen is living revocable trusts that are not fully funded. Undoubtedly, without the guidance of a quality estate planner, the funding process can feel overwhelming. When people procrastinate or run into roadblocks when placing assets into their trust they can get frustrated and fail to complete the process. This is a misstep with negative consequences because without funding the trust, it’s best thought of as an empty container waiting for a testator’s assets to fill it up. Without it, if the person with the underfunded trust passes away, the estate will still need to pass through the sluggish and costly probate process. And, quite frankly, the investment in the trust will have been for little benefit or advantage.

Let your estate planner help you through this process. Also, consider if you have any new major assets that need to be assigned to the trust.

Funding and Administering Your Living Trust

All jokes aside, every Iowan deserves a high quality and functional estate plan that meets their goals. Don’t be a fool and let more time go by before reviewing your plan! Please contact me with any questions; I offer a free one-hour consult.

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Start a New Thanksgiving Tradition: Talk About Estate Planning

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give thanks table with autumn leaves

Thanksgiving weekend is chock full of traditions for families from parade watching and football playing to pie eating and Black Friday shopping. One less obvious activity you should add to the weekend roster is a discussion on estate planning. America’s second favorite holiday, where family and friends come together from near and far, to eat good food and spend quality time together is a prime opportunity to make sure your loved ones have a plan for the future in the case of unexpected death or incapacitation.

thanksgiving table

Now, I don’t recommend questioning your uncle if he has a living will over the turkey table. But, after the food coma wears off, gather your loved ones around in a comfortable spot and strike up a conversation about how estate planning is important for everyone. That includes your brother who has young kids, your mom who donates regularly to the local food bank, and even your cousins who are obsessed with their dogs…there’s a place in estate planning for all of them. Here are a couple tips to make the discussion a success as great as pumpkin pie.

Give the Best Advice at the Table

No one around the family table should be to disclose who they have named as heirs. That could be awkward depending on who’s in the room. (However, discussing your donative intentions should happen privately with beneficiaries and fiduciaries included in your estate plan.) But, you should pass along the great advice that estate plans should be reviewed at least annually and always after a major life event like a birth, death, marriage, divorce, or moving across state lines.

The Importance of Discussing Your Estate with Your Family

Explain Why Estate Planning is Essential

The benefits of estate planning are numerous and estate planning can be tailored to meet each individual’s unique needs and goals. But, you don’t have to get too into the weeds. Leave that part to the estate planner who’s job it is!

Think Estate Planning is Just for the Wealthy? Think Again!

If anyone needs convincing to get started on their estate plan ASAP, simply explain that estate planning is an opportunity to take action as opposed to passing the burden to family members to figure out what to do with their stuff, how to access important accounts/information, and slog through the tedious intestate probate process. Estate planning can create chaos and even incite litigation between heirs over the deceased’s estate. Just like Thanksgiving traditions create a lasting memory, estate planning is your opportunity to leave a lasting legacy.

Offer to Help

Estate planning can sound intimidating to someone who’s never gone through the steps before. Offer to help by recommending an experienced estate planning attorney they can trust.

Pass Along Something Tangible

Want to pass along something beyond just words? You can also share this handy dandy checklist and free, no-obligation Estate Plan Questionnaire.

thanksgiving table

Encouraging all the people you care about to articulate their wishes is truly something to be thankful for! If you or any of your loved ones want more information feel free to contact GFLF for a complimentary consult.

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Pick up the November Book Club Read: Waiting for Eden

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leaf on top of book

Bust out those library cards or fire up the e-reader, we have your latest and greatest GoFisch Book Club read for November! We hope you enjoyed the October pick, but now we’re shifting gears to a fictional tale with some salient real-world estate planning tie-ins…plus it’s a National Book Award Finalist, so you know it’s good! Waiting for Eden, by Elliot Ackerman, features a wife who is perpetually present at the bedside of Eden, her husband, when he comes to after being in a coma for years. Eden was badly injured while serving in the marines in the Middle East. When he becomes conscious after his coma, the bulk of his body is marked with the aftermath of burns, and he’s unable to talk, hear, or see. He’s never met his daughter and  Mary, the wife, has to grapple with the decision to extend Eden’s semblance of a life further or turn off the life support that keeps him immobilized. As the story unfolds, truth about the marriage come to life and we’re forced to face the question of what makes a life a life? What makes it worth living?

The primary themes are love, marriage, and tough health care choices when someone’s faculties are reduced to next to nothing can be heavy. But, they’re also super important consider. Ackerman created military fiction without it being a straight “military” storyline. (But, if you do like military-related reads, you get a dose of it from the perspective of a friend of the main couple who died in the same war accident Eden was injured in.)

waiting for eden

The life/death situation presented in Waiting for Eden is rare, and hopefully you and no one you know ever has deal anything remotely similar. But, if you are in the position of making difficult health care decisions for a loved one, it’s better to know exactly what their choice and intent would have been had they not incapacitated. This is where the health care power of attorney comes in.

6 Things Iowans Should Know About Health Care Power of Attorney

About Health Care Power of Attorney

A health care power of attorney (PoA) is a legal document that allows you to select the person (your “agent”) that you want to make health care decisions on your behalf, if or when you become unable to make them for yourself.

Once your health care PoA goes into effect (typically most people elect to have this be the case only if an attending physician certifies you are unable to make medical decisions independently), your agent will then be able to make decisions for you based on the information you provided in your health care PoA. If there are no specifics in your health care PoA relating to a unique situation, your agent can and should make health care decisions for you based on your best interests. Obviously, the person you select as a your health care PoA agent should be someone in whom you have the utmost trust.

Equally important, your agent will be able to access your medical records, communicate with your health care providers, and so on.

Keep in mind your health care PoA isn’t just about end-of-life decisions; it can cover many types of medical situations and decisions. For instance, you may choose to address organ donation, hospitalization, treatment in a nursing home, home health care, psychiatric treatment, and other situations in your health care PoA.

GoFisch Book Club Flyer

Living Will

For people who feel strongly about not wanting to be kept alive with machines, specifically covered in a document that can be thought of as a part of your health care PoA known as a living will.

All Iowans are special and unique and have special and unique issues and concerns. It’s completely up to YOU as to what’s contained in your health care PoA. You name the agent(s). You decide what medical decisions will be covered and how. It’s all up to you.

What a Living Will & Health Care Power of Attorney Mean for your Medical Care

If Eden would have had such a document executed before he went to war with Mary named as his representative, the situation still would have been tragic, but the decision less disconcerting. But, the book probably would have been less of a captivating tale of friendship, love, and what it means to be human. If you can, however, save your loved ones confusion and uncertainty, plan ahead for the unexpected with a quality, clear health care power of attorney.

What are you thoughts on Waiting for Eden? Share your thoughts with other readers in the comments below or with GFLF on Facebook, Instagram, or Twitter!

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What a Living Will & Health Care Power of Attorney Mean for your Medical Care

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xray-doctor

One of the six main parts of an estate plan that every adult Iowan should have is a health care power of attorney (POA). This legal instrument allows you to designate the person that you want to make health care decisions for you in the chance that you become incapacitated and unable to make such decisions for yourself.

6 Things Iowans Should Know About Health Care Power of Attorney

Who can be my Health Care POA Representative?

The person you pick is your agent/representative for purposes of health care decision-making and should be (a) a competent legal adult; (b) someone you trust would make health care decisions that align with your best interests; and (c) someone who agrees to the role. Some people elect to have the same person be their designated proxy for both the health care and financial powers of attorney. Other folks choose two different individuals for these roles.

It is highly advised to name an alternate representative in case the person you appoint becomes unable or unwilling to act on your behalf.

The law does not allow your health care designated agent to be a health care professional providing health care to you on the date you sign the document. It also cannot be any employee of the doctor, nurse, or any hospital or health care facility providing care to you. The only exception is if that employee is a close relative.

What types of Health Care Decisions does a POA Cover?

A health care power of attorney can govern any kind of decision that is related to your health that you allow. You could, for example, limit your representative to certain types of decisions. Or, you could allow your representative to make decisions for any type of health care choice/issue that may arise. This includes decisions to give, withhold, or withdraw informed consent to any medical and surgical treatments. Other decisions could relate to psychiatric treatment, nursing care, hospitalization, treatment in a nursing home, home health care, and organ donation.

 

Assorted pills

When Would I use a Health Care POA?

A health care POA comes into play only when, in the certified and recorded opinion of your attending physician, you are unable to make health care decisions for yourself. Your named agent is then able to make decisions regarding your care, receive access to records, communicate with health care providers, and other important actions that would otherwise be off limits.

What is a Living Will?

The name of this document is bit of a misnomer. Sometimes referred to as an advanced directive, a living will is best thought of as a written declaration that informs health care providers of your desire to NOT have life-sustaining treatment continue if you are diagnosed as terminally ill or injured, are unable to communicate your choices regarding your treatment, and such treatment would simply prolong the inevitable and imminent process of dying. You may consider a living will an important part of the whole that is your health care power of attorney document

Under Iowa’s Living Will Law, a living will does not permit withholding or withdrawing food or water unless they are provided intravenously or by a feeding tube. Additionally, medication or medical procedures necessary to provide comfort or to ease pain are not considered life sustaining, and may not be withheld.

Because of the sensitive nature of the living will, before signing the document make certain the provisions included align with your philosophical and/or religious beliefs and wishes.

Important Definitions

“Life-sustaining treatment” is defined as the use of medical machinery such as heart-lung machines, ventilators, tube feeding, and other medical techniques that may sustain and possibly extend your life, but which won’t, by themselves, cure your condition.

“Terminal condition,” under Iowa law, is defined as an incurable or irreversible condition that without life sustaining procedures, results in death within a relatively short time or a comatose state from which there can be no recovery, to a reasonable degree of medical certainty.

In all states the determination as to whether you are in such a medical condition is determined by qualified medical professionals—typically your attending physician and at least one other medical doctor who has examined or reviewed your medical situation. The decision must be recorded in your medical records.

 

doctor stethoscope

How do I Make a Living Will?

This is one of the documents I include in the estate planning packages for my clients, if they so elect to have one. The first step, at least when working with GFLF on your estate plan, is filling out my Estate Plan Questionnaire, which is where you can choose “yes” or “no” for creating a living will.

In terms of qualifications, you must be a competent, legal adult who is age 18 or older. The declaration can be signed in the presence of two witnesses (who also must be 18 or older and should not be family members if at all possible) or a notary public. Note that health care employees responsible for your care cannot be the witnesses.

Of course, the declaration for a living will must be signed voluntarily and without coercion.

What do I do Once I Sign a Living Will?

The original living will must be given to your doctor in order for it to be acted upon. Therefore your health care designated agent should have access to the original if the time comes when it is need.

Under Iowa law, it is your responsibility (and therefore your health care proxy if you are unable or incapacitated) to provide your attending physician (the doctor who is primarily responsible for your care and treatment) with the declaration. This attending physician might not be your family doctor, but it’s smart to give a copy of the living will to your family doctor to have on file. In addition, the living will’s existence should be made known to members of your family.

What Happens if I Change my Mind About my Living Will?

A living will is revocable at any time. You may revoke the document easily by notifying your attending physician of your intent to do so. This communication of intent will then be recorded by your attending doctor as a part of your medical record. If this is the case I also recommend contacting your estate planning attorney and health care designated agent to communicate your change. Depending on what is written in your health care POA that document may need revisions or additions, which is something your estate planning attorney can facilitate.

surgeons walking down hallway

What About a Living Will Made in Another State?

This is a good question as each state has its own laws related to living wills and such decisions. A living will made in another state will be valid in Iowa to the extent that the declaration aligns with Iowa laws on the matter.

That being said, it’s best to have a current living will declared in the state you reside in and are most likely to receive care in. So, if you signed a living will while living in Colorado and then move to Iowa, it’s best to sign a new living will that is specific to Iowa’s laws. (Plus, moving across state lines is one of those big life changes that mean you should update your entire estate plan to be sure it’s valid under your new home state’s estate, property, and inheritance laws. So, you may as well update your living will while you’re at it!)

What Happens if I don’t Have a Living Will?

Without a living will stating your directives, others will be forced to decide if life-sustaining procedures will be used for you. (Typically this is a situation one does not want to place on their loved ones.) If you have a health care power of attorney, that representative will make the decisions regarding life sustaining treatments and procedures.

If you also don’t have a health care power of attorney in place, Iowa law states that the attending physicians and the first person available from the following list will make such health care decisions for you  in front of a witness:

  • A guardian, if applicable (Note that a court appointed guardian must obtain court approval before making this decision.)
  • Your spouse.
  • Your adult child (or a majority of your adult children who are available).
  • Your parent or parents.
  • Your adult sibling.

Disposition of Final Remains: Save your Loved Ones Headache & Ambiguity

Communication is Key

Just like it’s important to discuss your estate planning decisions with your executor and family, it is equally important to discuss your health care and life-sustaining wishes with the person who will be your agent. You may also plainly state directives on your health care power of attorney form such as “I want all available organs to be donated in the event of my death.”

Review and Get Started

Whew. That was a lot of important information in one blog post. Let’s review how the two different but compatible documents of health care power of attorney and a living will:

  • Your health care power of atttorney gives a proxy your designate and trust the authority to make medical decisions for you if you are unable to make them for yourself.
  • The living will is a document specifically directing your physician that certain life-sustaining procedures should be withdrawn or withheld if you are in a terminal condition and unable to decide for yourself.

You can have a health care power of attorney document without having a living will. And, while not advised to not have a health care power of attorney document in place, you could technically have a living will without a health care power of attorney.

If you don’t have health care power of attorney or a living will in place, there’s no time like the present to make your decisions known and recorded well before the unexpected happens. Fill out my easy Estate Plan Questionnaire to get started. If you have any questions about either of these documents, don’t hesitate to contact me at gordon@gordonfischerlawfirm.com or by phone at 515-371-6077.

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