Nursing Home residentOne of the more popular speeches that I give is on the Top 12 Estate Planning Mistakes–How to Detect and Avoid Them. In this series of articles, I am going to cover one mistake per newsletter.

The first mistake we will cover is failing to address healthcare decisions. The mistake is actually failing to address healthcare decisions before the need arises.

A lady came into my office and said, “My neighbor is in the hospital unconscious. We have lived next door to each other for 30 years and we are best friends. I went to the hospital and the doctors won’t tell me what is happening with her. Her “no-good” son who she hasn’t seen in over 15 years is now in town and that is who the doctors are allowing to make decisions for her. Is there a way for us to go to court and get me the right to make her medical decisions for her, because I know that is what she would want?”

Unfortunately, my answer had to be that there was nothing we could do now, because her neighbor didn’t have the proper documents in place. Without those documents immediate family members are the ones who are allowed to make those decisions. Prior to becoming incapacitated, the neighbor could have signed documents allowing her friend to make medical decisions for her. If she didn’t want her son to make decisions, she could have signed documents indicating that in no event would that son have the ability to make decisions for her.

Because we are living longer, 85% of deaths occur in hospitals and nursing home. Since we are living longer, our odds of not being able to make decisions for ourselves at some point in our lifetime are very high. Also, because we are living longer, there are longer periods of time where patients lack decisions making capacity.

The problems created by not have healthcare documents in place include the following scenarios:

  • The problem that was created in Terry Shiavo’s situation. You may remember she was the lady in Florida who was on life support and her parents and husband were arguing about whether she be kept alive on life support. She could have had documents in place specify whether she wanted life support and in what circumstances.
  • Another problem with not having the documents in place is the guilt the family faces if life support is withdrawn. It is much easier on the family if they know your wishes and can say, “Mom said she didn’t want to be kept alive by machines in this type of situation.”
  • Another problem is no decision maker. If there is no documents in place, then there may be more than one person under the law who has a right to make the decision. If they don’t agree, then that can create conflict.

Not having the documents in place can cause delays in making decisions and can be very expensive if the decision makers decide to argue in court.

We provide our clients with a health emergency card that gives doctors and hospitals access to the healthcare documents, so they know who has been appointed and how to get in touch with them.

Also this month, please read my article on seven steps everyone should take after losing a loved one.

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Leigh Hilton P.L.L.C