Can you ever really be ready for an emergency?  After all, an emergency is by definition a sudden and unexpected event.  How could you possibly be ready?  Okay, maybe we need to be asking, are we as ready as we can be?

When most people think of estate planning, they think about what happens to their property upon their death.  But how property passes at death is just one of the elements of an estate plan.  We also help clients protect themselves and their loved ones from incapacity.  Sometimes the onset of incapacity is a gradual thing, such as the onset of dementia.  Other times it can be quite sudden, as when one suffers a stroke or a heart attack.  I was actually on the phone talking with a representative at a bank’s call center when it became obvious that the representative was suffering from a stroke.  Suddenly she was unable to intelligently continue our conversation and kept repeating a simple phrase.  She was apparently unable to first, respond to my questions, then to react to my requests that she attempt to get the attention of nearby co-workers.  This continued for several minutes until the conversation abruptly halted and I helplessly heard co-workers trying to assist her.

What can we do to prepare ourselves from such an emergency?

First, have we created the documents necessary to allow others to assist with our care?  Primarily, that is a medical power of attorney.  It appoints agents who can make medical decisions for us in the event of incapacity.  Fifty years ago, physicians often just used their own judgment as to the best options for treatment.  When the number of medical malpractice cases began to increase, physicians became much more likely to explain options to patients, or to their family members, so the decision making shifted to the patient or family.  And even though the number of malpractice claims is much smaller post-tort reform, today’s medical practitioners are much more likely expect patients to make those decisions when they are able, or their agents when they are not.

And while doctors are wanting the patients or their agents to make decisions, they are also much more reluctant to discuss a patient’s care with others without a HIPAA compliant medical authorization.  Hospitals are also generally reluctant to release records without an authorization.  So the first part of being prepared is to have both a HIPAA compliant medical authorization and a medical power of attorney.

But having these documents alone isn’t enough.  To be as prepared as possible for an emergency, there are two additional steps to address.

  1. Can you have these documents available when you need them?  Are they locked in a safety deposit box at a bank?  Are they in a safe that only the patient has the key or combination to?  Even if unlocked, does anyone know that they exist, and where they are?  Your medical power of attorney and HIPAA authorization is not going to be useful unless your agents know you have appointed them, and have access to the documents.  In case of emergency, have you made remote access to possible?  There are services available that for a rather nominal annual fee, will give you access to cloud storage of your incapacity documents so they can be available anywhere an internet connection is available.  As a last resort, take a picture of them with your mobile phone so they are stored in your phone’s photo album.
  2. Can your health care providers reach your agents if they are not with you?  Years ago, we often added physical addresses to medical powers of attorney.  But as we have become a more mobile society, contact information became much less reliable.  So many estate planning attorneys began to omit this information, in favor of blanks that could be filled in with contact information before a planned visit.  Today, Americans are able to keep their mobile phone numbers even when they move to different states, so estate planning attorneys are now much more likely to add mobile phone numbers to their clients’ medical authorizations.  This helps the health care providers track down the agents in case of emergency, when the patient has a copy of their incapacity documents on file with the health care provider.

What about end of life decisions?

There are two distinctly different documents that address end of life decisions.  One is the advanced directive, often referred to as a living will, and other is a Do Not Resuscitate Order (DNR).   I recently had a client tell me that he wanted DNR’s for him and his wife because he was told everyone should have one by a national medical organization. I suspect that he misunderstood what they were recommending because he definitely did not need a DNR.  A DNR is only for patients who have a relatively short time to live, and they generally (but not always) know what the cause of death will be.

If a patient has an advanced, terminal cancer and a life expectancy of only a few months, a DNR would be potentially appropriate.  Such a patient might well want to forego a major surgical procedure or what they would consider heroic measures, say for instance, to treat a heart attack, if that treatment would not significantly extend the patient’s life expectancy.  So DNR’s are not something you should expect your estate planning attorney to make a part of every estate plan.

However, an advanced directive is something you should expect an attorney to prepare for you.  It will not prohibit a physician or hospital from extending your life for any reason, but it does tell both family and physicians a patient’s wishes with regard to conditions that are in the opinion of the physician, either terminal within six months or irreversible.  So unlike a DNR, it only addresses situations where it appears death is imminent or a patient will never regain the ability to make his or her own medical decisions, care for himself or herself, and he or she will die without life-sustaining equipment or treatment.

Have you taken these steps to be prepared for a medical emergency for you or your family?  If not, you might consider consulting with a qualified estate planning attorney about whether you should have them, and how they should be stored.

By: Mike Carroll