Often, when people discuss their estate plan, they focus solely on how to transfer or protect assets upon their death. Protecting and transferring assets is certainly an important part of any comprehensive estate plan; however, another important part of an estate plan is incapacity planning. Protecting yourself and your wishes should be included in your estate plan by executing an advance directive for healthcare, often referred to as a health care power of attorney or living will.

An advance directive for healthcare generally allows you to accomplish two goals. First, you appoint someone to make health care decisions on your behalf if you are unable to do so in the future. Next, you have the opportunity to express what treatments or care you do, or do not, want in the event you are unable to express those wishes if incapacitated at a later time. For example, you may be able to indicate whether you wish life sustaining measures to be taken on your behalf as well as whether or not you wish to be given intravenous food.

Many people mistakenly believe that a spouse, parent or child will automatically be allowed to make health care decisions in the event you are unable to do so as a result of incapacity. In reality, a court must generally make the decision regarding who will be allowed to make decisions on your behalf. Although the court may eventually decide that your spouse, parent or child is the appropriate person to appoint, valuable time may be wasted in the meantime.

Although it is impossible to make all possible decisions ahead of time with regard to your health care or treatment, an advance directive for healthcare allows you to legally express certain wishes ahead of time.

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.

A recent study in the New England Journal of Medicine found that nearly 25% of senior citizens will require someone else to make decisions for them at the end of their lives.  How do you maintain control while relinquishing these decision making tasks to another person?

Creating advance medical directives allows you to keep some control of your medical care when you are no longer able to make these decisions on your own or to express your wishes.  Advance medical directives dictate treatment preferences, end of life care preferences and the designation of a decision-maker in the event of incapacitation.

The most often-used advance medical directives used in estate planning is the Georgia Advance Directive for Health Care which combines the following document in to one directive:

• A medical power of attorney:  allows you to name a person to make medical decisions for you if you are unable to communicate on your own. The person you name to make these decisions is usually called your health care proxy or agent.
• A living will:  specifies the types of medical treatments and life-sustaining measures you do and do not want, such as mechanical breathing (respiration and ventilation), tube feeding or resuscitation.

Not only does the Georgia Advance Directive for Health Care provide a way for you to communicate your wishes to loved ones and health care professionals, but it eases the burden of these decisions on your family, and they will appreciate knowing that your wishes are being carried out.

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.

Atlanta estate planning lawyers spend a good bit of time assisting their clients with financial concerns, but planning the distribution of your assets after your death is just one aspect of elder law. Incapacity planning is also an important component to any holistic long term plan that addresses all of the possible eventualities of aging, and advance health care directives are an important element.

One advance directive that is widely recommended is the living will and the other is the health care power of attorney. In July 2007, Georgia combined these two documents into one document called the Advance Directive for Health Care. The reason why the health care POA was combined with the living will is because there may be situations that arise that you did not think to address when you were drawing up the living will.

With this document you can state your wishes with regard to the types of medical procedures you are willing to accept and those that you would prefer to deny. The Advance Directive for Health Care addresses the matter of artificial life support and whether or not you want to be kept alive through artificial means should you fall into a terminal condition.

The other foundational advance health care directive is the durable medical power of attorney. When you execute this document you give an individual the authority to act in your behalf with regard to medical decisions should you be unable to make decisions for yourself. There is however a wild card of sorts that is presented by the Healthcare Insurance Portability and Accountability Act of 1996. A provision in this act prevents health care providers from sharing what is termed “protected health information” with any third party. So even if you have named an attorney-in-fact to represent you, a hospital may be unwilling to share your information with this person for fear of violating the HIPAA. For this reason it is a good idea to include a HIPAA release with your advance directives to be 100% sure that your wishes are carried out and your chosen representative can communicate freely with your health care providers.

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.

Estate planning is one branch of the tree called elder law, and when you are engaged in long term planning here in Atlanta the prudent course of action is to prepare for all of the possible eventualities that go along with aging. With this in mind, one of the issues that was front and center during the sometimes heated dialogue that was taking place when health care reform was being debated involved end-of-life issues such as artificial life support. Previous to this, the highly publicized case of Terri Schiavo, who was in a vegetative state and being kept alive by a feeding tube, was a topic of national debate when her husband wanted the tube removed and her parents resisted his decision in court.

The Schiavo case involved a man who was legally married to the incapacitated Terri and the tube was ultimately removed and she passed away a couple of weeks later. Had they been an unmarried couple living together in a committed relationship the law would have viewed the matter in a different way and left the choice up to her next of kin regardless of what her partner had to say about the matter.

How you feel about being kept alive via artificial means should the situation arise is your own personal choice, and you have the legal right to assert your wishes and make sure that there is no legal tug of war between your loved ones. This can be accomplished through the execution of health care directives like living wills and health care proxies. In July 2007, Georgia combined these documents into one document known as the Advance Directive for Health Care.

With the “living will” portion of the Advance Directive for Health Care, you plainly state your preferences in terms of life support or any other medical procedures you will accept or deny. The “health care proxy” portion of the Advance Directive for Health Care is used to name the person you empower to make medical decisions in the event of your incapacitation. If you are unmarried and you want your partner to have this authority, it is essential that you include an Advance Directive for Health Care as part of your estate plan.

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.