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WILLS/POAs -- PREPARING FOR THE WORST Not many of us enjoy discussing death or dying. But ignoring or denying the situation in hopes it will go away only causes more problems. Leaving important legal affairs unattended will only make matters worse. Even if you do not have a partner or neither you nor your partner suffer from a life-threatening disease, it is important to have your legal affairs in order. Maryland law does not recognize same sex unions in any way, shape or form. The unfortunate state of the law leaves the gay and lesbian community particularly vulnerable during the already trying times accompanying illness and death. During my years as an attorney, I have heard an endless number of horror stories from partners unable to provide proper care for or to visit their lovers, and from surviving partners who were left out in the cold when the family came in and took over. In one case, an emergency health care situation arose. There were no documents authorizing the ill man's partner to be his health care agent. An ambulance was called. The ambulance took the unconscious individual to the nearest hospital which is not noted for its AIDS care. He did not receive proper medical attention. His lover could do nothing but stand by and watch him in a coma, knowing much more could be done to help him. Without the proper paperwork, nothing could be done to transfer him to another hospital or even engage a competent physician for a neurological consultation. Remember the case of the woman who was left a virtual vegetable after an automobile accident. Her parents would not even allow her lesbian lover to visit her. Her lover was forbidden to see her or to provide any assistance to her even though she was a physical therapist who could have helped provide much needed rehabilitative care. In another case, two men lived and worked together. The real property was only titled in one of their names. Although they purchased most household items together, there was no proof of this fact. The one in whose name the realty was titled died. His father who had abused him and disowned him came into the picture after not seeing him for over thirty years. The father forced the surviving partner off the property with nothing. Without a will in his favor, the partner didn't have a leg to stand on. Instead of depressing you any further, I will outline what you need to do to easily protect yourself and prevent one of these horror stories from happening to you. With a financial power of attorney (POA) and an Advance Directive for Health Care provide you can designate a person to act for you financially and with regard to your health care decisions while you are alive, but incapacitated. A financial POA designates who will be in charge of your property. If executed properly, it will be effective when you are physically or mentally unable to handle your affairs. This document is useful in many financial situations. It is particularly important if you own real property or have money in bank accounts that are in your name only. It must be notarized to be effective. An Advance Directive for Health Care provides for and designates who will be in charge of your medical needs and care. The document must be witnessed by two individuals. The person designated as your health care agent may not witness the document. And, at least one of the witnesses may not be a person who may financially benefit by reason of your death. In Maryland, you must designate a health care agent or execute a Living Will or Advanced Directive if you do not wish extraordinary measures such as a respirator, or tube feeding used to maintain your life. Without these documents, medical establishments will usually use all means necessary, no matter how intrusive, to maintain your life in order to avoid legal liability. The Maryland Legislature passed the Health Care Decisions Act during the 2006 legislative session. It became law in July of 2006. Before the new law came into effect, Marylanders used one form to name health care agents and alternate agents. An additional form was used for health care decisions and was popularly often referred to as a “Living Will”. Previous Maryland law was even more confusing in that it recognized two official health care decisions documents in this regard. These two forms allowed a person to designate when their death was imminent whether they did or did not desire the implementation of extraordinary life-sustaining measures and/or the administration of artificial nutrition and hydration in a number of different medical scenarios. One form included two medical conditions, while the other form included three. It was confusing and often difficult to explain to clients why one form included two medical scenarios and the other three, especially since most people have heard of “Living Wills” and that was the form that only included only two medical conditions. The new law not only permits selections on all three medical conditions, but also allows the designation of all medical decisions, health care agents and after death decisions to be completed in one form. Since the new law permits all the same health care choices as the previous law, let’s spend our time reviewing the new law and the forms prepared by the Attorney General’s Office in this regard. After identifying yourself in Part I on the new form, you may also designate your primary health care agent, an alternate agent and even a third alternate agent with addresses and home and cell phone numbers. The new law adds an important new right for health care agents not previously available. Your health care agent can now ride with you in an ambulance if you need to be rushed to the hospital. Thus, same sex couples can no longer be denied the right to accompany their partners in ambulances if these documents are executed. This will correct the unjust practice of excluding your significant other from participating in your care at this critical juncture. You may also designate any limitations on your agent’s authority. It is usually not advisable to list any limitations in this regard. The purpose of this form is to give your partner legal authority, not to limit it. There is also a section that allows you to list the people your agent should consult with respect to your health care decisions. I would not suggest that others should be listed in this section. Again, from the perspective of same sex couples, the purpose of this document is to provide your partner with the authority to make your health care decisions. It would defeat that purpose to list others that need to be consulted before decisions can be made. You may also designate any special instructions to be followed if you are pregnant. Some of my female clients have included language that specifically states that they should be kept alive until their children are born. A federal HIPPA authorization is also included. This will ensure that your care providers are legally able to share your health care information with designated others. There is also a section to indicate when the authority set forth in the document becomes effective, after the document is signed or when a doctor decides that you are unable to speak for yourself. The new form provides two medical situations and standards; i.e., temporary and permanent disability. Your treating physician has the authority to decide you are temporarily unable to make your own decisions. The new form requires that your attending physician as well as a consulting physician agree that you are permanently unable to make my own decisions. I have had couples decide this issue both ways. Some people don’t want to turn over their authority to make their own decisions until they are unable to make their own decisions. Others want to take a physician’s discretion completely out of the mix. They want to be sure they are able to make any decisions for their partners when the time comes without the risk of medical arguments about whether a person is actually incompetent. I can see the wisdom in both options. But after the Terry Schiavo case, I think my suggestion would be to lean toward providing your partner with the immediate authority to make all health care decisions. The previously referred to three different medical scenarios are described in Part II of the new form. You are permitted to select whether you do or do not desire extraordinary life-sustaining measures and the administration of artificial nutrition and hydration if your death is imminent from either a terminal condition, persistent vegetative state or in an end-stage condition. In 25 years of legal practice, I’ve only run across one couple and one individual that have requested that they be kept alive as long as possible, using all available interventions. If death is imminent, most people want to die naturally. The more difficult issue for most people here seems to be whether they want artificial food and water. Some people can’t bear the thought of dying of thirst. Others want to go as quickly as possible. Of course, this is all about personal choices. But even the people that desire artificial food and water usually do not wish to be kept alive under these circumstances if they are in a persistent vegetative state. In that instance, it is the artificial food and water that will actually be keeping you alive. The next section also allows you to provide specific language for decisions if you are pregnant. Again, some of my clients have elected to remain alive until their babies are born if they are pregnant no matter what their medical condition. You may also designate a preference for your health care agent to be flexible with any decisions since all conditions can not be foreseen, or in the alternative, you may select that your decisions must be followed to the letter no matter what contingencies occur. Again, this requires another personal decision. The new form also provides for “After Death” decisions. You may select specific organs or tissues to be donated after your death. You may designate organs to be transplanted or donated for research, therapy, medical research or any legal purpose. You may also designate another person to make after death decisions or funeral arrangements. Again, don’t select another person in this section if you want your partner to make these decisions for you. Finally, the new form must be witnessed by two people and need not be notarized. Neither your health care agent nor anyone that may receive any financial benefit under your will may witness the Advance Directive. All things considered, the new form is obviously more comprehensive, but may also be a bit confusing if you’re not used to dealing with these issues. I strongly advise all same sex couples to execute this new document. It will be worth its weight in gold if you and your partner are going through a medical situation or if a medical emergency develops. Do yourself a favor and take advantage of the latest legal vehicle to help your partner to help you if an unfortunate medical situation arises. The Attorney General's Office provides Advanced Directive forms to the public free of charge. Unfortunately, you may need legal counsel to explain the sometimes confusing form. I will be glad to further explain the relevant medical scenarios contained in these documents and any other questions you may have if you wish to call me for an appointment. The directives in a will take effect once you are deceased. An executor, known as a "Personal Representative" (PR) in Maryland is designated in the will to manage all your affairs, including making funeral arrangements and administering your estate. Your PR will also be in charge of distributing your estate to your designated beneficiaries. Although every client's situation is different, you will be afforded a number of protections if you have executed a will. You can specifically set forth any funeral, burial or cremation wishes you desire. Without a will, most funeral directors will not proceed with cremations without the consent of your parents. You can also designate who you want to receive your belongings. Without a will, your lover is at the mercy of your family with respect to your possessions. Even if you were one big happy family before, these situations have a tendency to bring out the worst in people. If you have executed a will, remember that your lover will have to pay a 10% Maryland estate tax on everything you leave him or her in the will. The estate tax rate is only 1% for immediate family members. Once again, homosexual relationships are not recognized for estate tax purposes under Maryland law. The take home lesson is that whenever possible, big ticket items should not be included in the estate. For example, if you designate an individual as the beneficiary on a life insurance policy, the proceeds of your life insurance policy will not be included in your estate and are not subject to the 10% Maryland estate tax. If your estate is designated as the beneficiary on the policy, a 10% estate tax will be due if your significant other receives the insurance policy proceeds via your will. There are many other pitfalls to be avoided. Do not wait until it's too late. I promise you that leaving matters unattended will only make a bad situation even worse. You will need the following information in order to prepare your Wills, Powers of Attorney and Advanced Directive for Health Care: Wills:
Financial Power of Attorney
Advance Directive for Health Care
This article is only
meant to provide general information. I would be happy to discuss the
specifics of your personal situation with you. Please call for an
appointment if you are interested in additional information. |