Houston Estate Planning Law Blog
‘THE DESCENDANTS’ AND THE REALITY OF HEALTHCARE PROXIES
Many people in Texas remember the 2011 George Clooney film ‘The Descendants’ in which a husband and father of two girls must make the difficult decision of following his wife’s medical wishes or keeping her on life support. But as much as we’d like to think that this scenario was a construct of Hollywood, situations like this happen every day in hospitals across the nation.
In most cases, a patient has already discussed their medical wishes with their family and friends, even authorizing a medical proxy in the event that they are no longer capable of making decisions for themselves. But it’s often times surprising to know how many people do not either designate someone as their proxy or tell their proxy about their wishes before the unthinkable happens.
Let’s take, for example, the story of an elderly Massachusetts couple. As the wife’s lung disease worsened, she was having considerably more trouble breathing on her own. But as she told her nurse, she had taken numerous trips to the hospital and been placed on ventilators in the past; these were situations she never wanted to be in again.
Though she had explained this to her hospice nurse on multiple occasions, it was a conversation she had failed to have with her husband who she had recently designated as her healthcare proxy. Although he was considered her healthcare power of attorney on paper and responsible for making important medical decisions, because she hadn’t discussed this with him he unknowingly had her placed on a ventilator after she suddenly couldn’t catch her breath one day. It wasn’t until after speaking with the nurse that the wife’s intentions were discovered.
Although it’s a difficult conversation to have with your loved ones, planning for situations like this ahead of time-preferably before the onset of an illness-can ensure that all of your wishes are being carried out to your exact specifications. Doctors and hospitals rely on the instructions given to them by patients in order to give the exact care that a patient wants to receive; if that person is unable to make those decisions for themselves, doctors look to family members. Making medical decisions for someone else can be incredibly stressful and -as George Clooney’s character demonstrated -difficult to make as well without proper guidance.
Source: The Boston Globe, “Doctors have a duty to encourage patients to discuss end-of-life wishes,” Kiran Gupta, Feb. 20, 2013
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HOUSTON WOMAN USES POWER OF ATTORNEY FOR EVIL, NOT GOOD
A 76-year-old Houston woman is trying to put her finances back in order after a 24-year-old Texas woman not only stole her driver’s license and social security card but used them to gain power of attorney over her bank accounts, getting away with nearly $30,000 of the elderly woman’s money.
In mid September, the 76-year-old woman went in to her local bank only to be told that someone had withdrawn $29,800 from her bank account. When the woman asked who, the bank gave her the name of a woman she did not know and explained that she had obtained power of attorney over her bank account. It was at this point that the woman contacted police.
Although investigators believe that a 24-year-old Texas woman is to blame for the theft, police have not been able to take her into custody as she remains at large at this time.
As Texas’ elderly community continues to rise, stories like this continue to emphasize the importance of talking with your family members about your estate before tragedies like this happen. And although power of attorney was used in the worst possible way in this scenario, in most cases, power of attorney can be incredibly helpful when distributing an ailing family member’s estate.
Many real estate planning experts point out that it’s always a good idea to not only have a power of attorney in mind but to let other people, including your financial institutions, know who that person is. And although rare, you may be able to offer yourself a safety net against the difficulties associated with identity theft such as this.
Source: KHOU News, “Houston woman accused of stealing money using power of attorney documents,” Feb. 4, 2013
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HOW APPOINTING POWER OF ATTORNEY CAN HELP WHEN YOU’RE INCAPACITATED
No family, in Texas or in any other state, wants to make the difficult decision of whether to take their child off of life support in order to end a terminally ill child’s suffering. But in situations where the child is of legal age, it is even more difficult when the child makes the decision that they want to be taken off of life support despite the parent’s opposition.
But this is exactly what happened to a family in Queens when their daughter requested the removal of life support. Her parents cringed at the thought and her father even petitioned in court to have himself appointed as her legal guardian. She later changed her mind, but it is cases like this that gets people thinking: what options do I have in similar circumstances?
Many estate planning attorneys will tell you that, even if you’re not sick now, it’s a good idea to have a plan in place just in case the worst should happen. Many lawyers will suggest appointing someone as your power of attorney. The designation of this person allows them to make medical decisions on your behalf should you become incapacitated. Sometimes, lawyers may also suggest a living will which describes your wishes when it comes to medical decisions in the event you are unable to state them otherwise.
Parents may also designate guardianship to someone else in the event that the parents of a disabled, ill or incapacitated child both die. Whether choosing guardianship or power of attorney, many experts will say that establishing powers of attorney can help family members in the future make difficult decisions they might not want to make on their own.
Source: NY Daily News, “Brain-cancer patient’s father drops court bid to be named guardian,” Erica Pearson, Oct. 9, 2012
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FAMILY ARGUES OVER MANAGEMENT OF ZSA ZSA GABOR
As Texas residents know, when a family member is very ill, this might lead to family conflicts over finances and related matters. For this reason, in the event of a health care emergency, it is very important to make an adequate estate plan.
In recent news, lawyers for Zsa Zsa Gabor’s daughter and husband are scheduled to appear before a judge who is considering whether the former actress, who is currently in poor health, needs oversight of her finances and medical care.
In some states, conservators are appointed by courts after a hearing has determined that a person is incompetent to handle his own financial or medical affairs. In Texas, you may have heard of the terms financial or health care “power of attorney.” Conservators perform similar responsibilities. However, conservators are appointed.
The attorneys for the two sides will argue their case before a judge. Specifically, the daughter petitioned to be named as her mother’s conservator; however, Gabor’s husband has opposed this request.
According to the daughter, the husband of the actress is allegedly mismanaging her finances. On the other hand, he claims that he is providing adequate oversight–medically and financially.
While the daughter is seeking access to medical and financial information, she would be open to having an independent third-party act as her mother’s conservator.
Sources report that the former actress will not be present at the hearing. Instead, her doctor recommends that she remains in her bed, which is a familiar and comfortable environment.
Ultimately, this case is a reminder that estate planning is very important. Before something tragic happens to your health, you may want to make arrangements for the oversight of your health or estate. After all, your assets should be protected by someone that you trust.
Source: Yahoo! News, “Judge to consider oversight of Zsa Zsa Gabor,” Anthony McCartney, May 2, 2012
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ESTATE PLANNING WHEN FACING SERIOUS HEALTH CONCERNS
No matter what point you are at in your life it is important to at least consider what sort of estate planning goals and strategies you may want to pursue. It is a great idea for even the young and healthy to begin talking about how they would like to structure their estate and pass along as many assets as possible to their future heirs.
But for those who are facing a chronic illness the utility of estate planning is all the more obvious. The importance of drafting a will, trusts and other long term planning documents is not related only to the fact that the seriously ill may not have as much time as others, there are also unique considerations that should be addressed for those with serious health problems.
For those that face an increased likelihood of physical or mental incapacity for extended periods, a health care power of attorney can ensure that someone you trust is appointed to make medical decisions on your behalf. A living will provides your instructions directly to your doctor on how you would like end of life medical decisions to be handled. You can also create a financial power of attorney so that someone you trust can access and manage your financial accounts when you are incapacitated.
A chronic illness can sometimes create a sense of powerlessness and a loss of control. Depending on individual health concerns it may be that in the near future you may not be able to personally express your wishes. By taking action proactively however you can put yourself in the driver’s seat for some of the most important decisions that will affect your future.
Source: Forbes “Declining Health Is Scary: Estate And Financial Planning Can Protect You,” Hani Sarji, Oct. 17, 2011
Continue reading: ESTATE PLANNING WHEN FACING SERIOUS HEALTH CONCERNS