“The afternoon knows what the morning never suspected.”–Robert Frost
Recently, it was reported that the percentage of people filling out living wills and healthcare surrogate forms has increased little since Congress enacted the Patient Self Determination Act ordering healthcare facilities to provide information to patients about advance directives.
What are advance directives?
With about 80 percent of deaths occurring in hospitals or nursing homes, you can use advance directives, in the form of a living will, to let their doctors and family know what kind of treatment you do not want in case you are incapable of making the decision. A living will does not mean you want to forego life-saving treatment, it simply sets forth how you want, or don’t want, aggressive high technology treatment, feeding tubes, respirators, and other life support measures.
Although the original health care bill provided that Medicaid could pay for consultations about end of life issues, this provision was unfortunately dropped as part of the final bill, due in part to the “death panel” hysteria and the labels that were attached to the issue.
It’s a good idea to sit down with your family and talk about your decisions and instructions. Another potential area to address is to consult a probate attorney and discuss the possibility of a pre-need or standby guardian. A “preneed guardian” is a person named in a written declaration to serve as guardian in the event of the incapacity of the declarant as provided by statute. Most state’s preneed guardian statutes work as follows:
- A competent adult may name a preneed guardian by making a written declaration that names such guardian to serve in the event of the declarant’s incapacity. The written declaration must reasonably identify the declarant and preneed guardian and be signed by the declarant in the presence of at least two attesting witnesses present at the same time.
- The declarant may file the declaration with the clerk of the court. When a petition for incapacity is filed, the clerk shall produce the declaration.
- Production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian. The court shall not be bound to appoint the preneed guardian if the preneed guardian is found to be unqualified to serve as guardian.
- The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity.
- If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes a rebuttable presumption that such preneed guardian is entitled to serve as guardian. The court is not bound to appoint the alternate preneed guardian if the alternate preneed guardian is found to be unqualified to serve as guardian.
- After assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the probate court finds the preneed guardian to be qualified to serve as guardian, appointment of the guardian must be confirmed as part of the probate process. Each guardian so confirmed by the probate court shall file an oath and shall file a bond, if required. Letters of guardianship must then be issued by the probate judge.
One of the fundamental advantages to the preneed guardian advance directive is it essentially insures that the person or professional you want to serve as your guardian is in fact the one selected by the court. Of course, this is subject to the qualification and fitness of the person selected. For example, some recent probate court cases have found that in contested guardianship litigation, the court can find the preneed guardian unqualified to serve as plenary guardian upon a determination of the ward’s incapacity. For example, as a probate lawyer, one case I am familiar with involved the court finding a prospective guardian unqualified based on evidence that the preneed guardian had paid off her mortgage using the ward’s money, had purchased real property owned by the ward for less than market value, and that the ward’s bank account had been depleted during the same time period.