The information in this column is not intended to provide legal advice, but is intended to provide a general understanding of the law. All readers with a legal problem, including those whose questions are addressed here, should seek legal advice regarding their particular circumstances. For most people, the thought of not being able to make financial decisions is bad enough. But the thought of not being able to manage healthcare is even worse. After all, money is just that: money. But your health and healthcare is different.
So I thought I’d write this week about what happens when you can no longer manage your healthcare? What if you are disabled e.g. B. dementia, and not able to make decisions about health care themselves? Who makes these decisions for you?
You have two choices: plan ahead or do nothing. I do not advise doing nothing.
To plan ahead, you can choose who you want to make decisions about your healthcare when you can’t make those decisions yourself. In Texas, you do this by creating a health care power of attorney, sometimes called a health care power of attorney or medical power of attorney.
In your Power of Attorney, you appoint someone (your proxy) to make health decisions for you when you can’t. These decisions include things like speaking to doctors, scheduling doctor appointments, agreeing to medical treatment, picking up prescriptions, and so on.
Who decides whether you are unable to work? Here, too, you choose in advance who decides on your incapacity to work. You can have a doctor determine that you are unable to work. Many people choose to let a doctor make that decision, but you don’t have to let a doctor make that decision. You can also name a spouse, children or someone you trust.
What happens if you don’t plan ahead? If you do not have a power of attorney for health care and become incapacitated someone, e.g. B. a family member or loved one, submit a case to the court to request that they be appointed your guardian. While we work with people to establish guardianships, I do not recommend this as a viable alternative to estate planning and creating a health care power of attorney. This is because there are several issues with guardianship cases.
First, guardianship cases can be slow. While it is possible to obtain an emergency directive if necessary, guardianship cases can often take several months to complete.
Second, guardianship cases are expensive compared to advance planning. Consider a scenario where a person needs care. Everyone agrees: no one argues about whether the person needs a caregiver or who should be appointed as the caregiver. For this “simple” case, attorney fees can range from $7,500 to $10,000.
The third problem with guardianship is that it is public. Everything that happens in court is public. In addition, everyone who is “involved” in the person being cared for has a right of communication and the opportunity to express their wishes and ideas. Sometimes families become alienated from each other. But the brother you haven’t spoken to in 10 years and the parent you haven’t seen in 5 years all have the right to know about the case and have the opportunity to appear in court and express their wishes to announce
For these reasons, I do not advise you to do nothing. Instead, it’s important that you plan ahead.
A well-written power of attorney that includes health care is an important part of a comprehensive estate plan. I suggest it may be even more important than making a last will and testament, since a health care proxy will help you and your representative manage your health care while you’re still alive. It pays to think about your health care ahead of time.
Sam A. Moak is an attorney with the law firm of Moak & Moak, PC, Huntsville Real Estate, Probate and Trust Division of the State Bar of Texas. www.moakandmoak.com