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Rhode Island Elder Law Attorney - Advance Directives
Elder Law Attorney for Rhode Island, Eastern Connecticut and Southeastern Massachusetts
Incapacity Planning - Is It Necessary?
If there comes a time you cannot manage your own assets or make your own health care choices, advance directives allow you to maintain some level of autonomy.
It’s your right to choose who will manage your financial affairs and make health care decisions on your behalf should you become incapacitated. Advance directives are written instruments giving others—family members, friends, financial institutions, doctors, hospitals, etc.—advance instructions or “directives” on how to manage your finances and health care if you cannot do so yourself.
A comprehensive incapacity plan will include the use of a power of attorney, an appointment of a health care proxy, and a living will to ensure your wishes are honored and respected.
What Are Advance Directives?
Advance Directives are a group of documents that you execute during your lifetime that set forth your wishes in the event of incapacity. When you execute Advance Directives you appoint a person to be your agent and to speak on your behalf in the event you become unable or unwilling to make decisions, or act on your own behalf. You typically set forth instructions for the agent to follow and vest them with authority to undertake certain transactions on your behalf. Advance Directives stop being effective the moment the agent dies.
Advance Directives typically consist of
Power of Attorney;
Health Care Proxy;
Executing these documents during your lifetime will give you a voice when you may not otherwise have one.
Power of Attorney
This document allows you to appoint somebody you trust to be your “agent” to make financial decisions on your behalf. (If you do not execute this document during your lifetime and become incapacitated, your family member may need to commence a guardianship proceeding over you so that they can make property management decisions on your behalf.
If you do execute a Power of Attorney during your lifetime, then you can authorize your agent to pay your bills, hire or fire individuals, choose your domicile, make elections for you, sell your home or purchase a new one for you, contact Social Security, Medicare, life insurance companies, or any financial institution on your behalf.
The Power of Attorney can be “Durable” which means that it can take effect immediately upon execution by you and your agent. The Power of Attorney can also be “Springing” which means that it takes effect upon a determination (typically by letters from two doctors) that you are incapacitated or otherwise not able to act on your behalf.
You can designate one person, or multiple people, to serve as your agent. Your agents can act simultaneously or in succession. You can also authorize your agents to act separately. The basic Power of Attorney must be signed before a notary.
This document allows you to appoint somebody to make medical decisions on your behalf when you are unable to do so. This is important when you become incapacitated, and especially important if you are incapacitated in a non-hospital setting. Be sure to speak with the person you have appointed as your agent and tell them your wishes. You should make your agent aware of your views on nutrition and hydration. The Health Care Proxy is effective after medical professionals decide that you are not able to make decisions on your own.
The Living Will
This document allows your agent to instruct medical professionals to “pull the plug” when it is determined that you do not have a reasonable expectation of living a meaningful life.
The Living Will sets forth your wishes about end of life decisions and relieves your family and loved ones of having to make the difficult decision by guestimating what you would have wanted to do under the circumstances. You are able to set forth the circumstances under which you would like nutrition and hydration to cease.
In addition to executing this document during your lifetime, you should be vocal with your agent about the circumstances under which you want to be removed from machines. It's also important to choose an agent who will honor your choices.
Keep your Living Will separate from your Health Care Proxy. The Health Care Proxy should be shown to all of your doctors and hospitals. The Living Will, on the other hand, should only be shown when your condition is terminal. Make sure you know where these documents are and give copies to providers.
This document allows your agent(s) to access your medical records and written information about you. Often times, a person will appoint another as their Health Care Proxy (“Proxy”). The Proxy can make decisions and speak on your behalf but may not be able to access your records. Executing the HIPAA Release form will allow your agent access to your medical records in order to make a well-informed decision on your behalf.
A MOLST form (Pink in Rhode Island and Massachusetts, Green in Connecticut) is a doctor’s order that helps you keep control over medical care at the end of life. Like a Do Not Resuscitate (DNR) order, the form tells emergency medical personnel and other health care providers whether or not to administer cardiopulmonary resuscitation (CPR) in the event of a medical emergency. A MOLST form may be used in addition to -- or, sometimes, instead of -- a DNR order. The MOLST must be completed by your medical provider.
A MOLST form differs from a DNR order in one important way: A MOLST form also includes directions about life-sustaining measures in addition to CPR, such as intubation, antibiotic use, and feeding tubes. The MOLST form helps medical providers understand your wishes at a glance, but it is not a substitute for a properly prepared living will and durable power of attorney for health care.
Taken together, a living will and a durable power of attorney for health care can provide more information than a MOLST form, including details about your health care agent, more complete health care wishes, and your preference for organ donation.
At Connelly Law Offices, your Rhode Island elder law attorney, our firm takes pride in providing service that is personal and professional. At the initial consultation, we will discuss your main concerns regarding Advance Directives. After the conference, we will draft Advance Directives according to your specifications, providing a legal format to deal with the private emotions and any complex family relationships.
Most people have a vision for how their last days should be spent and how they should be medically treated. For your family, it is important to them that your wishes are explicitly followed. When you are not prepared for the unexpected, like incapacitation, your family is left reeling with the decision of what to do for you in your last days. Our compassionate and knowledgeable staff are ready to help you develop a plan that ensures that your wishes are honored and helps your family focus on healing.
---- RJ Connelly III