Not too long ago, my book club read a highly acclaimed book titled “The Art of Racing in the Rain.” I couldn’t finish it. In fact, I couldn’t get past the first chapter.

Everyone who read the book loved it, but it hit too close to home for me. It is written from the perspective of an old dog, Enzo, on the eve of his death. He’s trying to find a way to tell his owner that it’s time to put him down.  He explains he’s arthritic, has cataracts, and has lost bladder control, but his owner is not willing to let go:

“He would do it out of love, of course. I’m sure he would keep me alive as long as he possibly could, my body deteriorating, disintegrating around me, dissolving until there’s nothing left but my brain floating in a glass jar with clear liquid…But I don’t want to be kept alive.”

When I started to read the book, I thought of my dog, Elway, who is pictured above. Elway joined our family as a puppy. I still remember seeing him bound out of a barn on the farm where we adopted him. He has been a part of our lives for fourteen and a half years. Letting him go was not something I was ready to consider.

But I sit here today with that decision weighing heavily on my heart. He’s not been well. Like Enzo, arthritis is causing his back legs to fail him, his cataracts have clouded his vision, and he’s lost bladder control. Blood work last week revealed high liver enzymes, signaling a serious illness. The veterinarian has suggested euthanasia as a compassionate course of action.

Still, I’m struggling. How do I know I’m making the right decision? Would he want to fight, or like Enzo, is he ready to die? What gives me the right to decide when that should happen? Elway is a dog, not a human being, but having struggled with this decision, I can’t even begin to imagine the stress and grief associated with deciding to terminate life support for a person who’s incapacitated and has not made his or her wishes known.

I’ve written before about how sharing your healthcare wishes and explaining your reasoning can relieve your loved ones of a lot of stress they may feel in making these decisions without your guidance. The veterinarian assures me that euthanizing him is a loving choice, but I wish Elway could tell me what he wants me to do. It would relieve some of the guilt I feel about making the decision to end his life.

When I look into Elway’s eyes, they look tired. His breathing is labored. His quality of life has deteriorated. I will be by his side today as he goes to sleep for the last time. I hope he feels loved. I hope I’m doing what he would have wanted.

In Memory of Elway – April 15, 1997 to November 29, 2011

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I recently received a heart-wrenching note from a parent, whose 22 year-old son had been involved in an accident. He was knocked unconscious with multiple dislocations and was in a coma for more than two weeks.

During his hospital stay and treatment, he developed pneumonia and a staph infection which elevated his temperature and blood pressure. Complications from this development caused him to have a stroke and seizures.

He is currently incapacitated, lives at home with his parents, and requires long term rehabilitation. His parents are trying to facilitate his medical care and handle his financial affairs, including applying for social security benefits and Medicaid. But because he doesn’t have a Durable Power of Attorney, Medical Power of Attorney, and HIPAA authorization, they are encountering obstacles.

They contacted me to inquire about whether it was possible for them to obtain these documents. Unfortunately, their son doesn’t appear to have the requisite capacity to sign the documents that will allow them to step in and handle his affairs.

According to a recent study, less than one third of all Americans have documents that will protect them in the event of their incapacity. Most people believe that disability is something that happens only to older people. That we have time. That our families will be able to take care of everything if the need arise.

But without the requisite documents, a legal proceeding may be necessary to grant your loved ones the authority to act on your behalf. And this will take more time and cost more money than if you had a durable power of attorney, a medical power of attorney and a HIPAA authorization in place.

Incapacity is not just something that happens to older people. It can happen at any age. Are you prepared?

Photo courtesy of and copyright Free Range Stock, www.freerangestock.com.

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The image above came from an actual Facebook page I found recently. An irate mother started the page after a nurse refused to provide her with information about her daughter who was injured in a car accident while five hours away at school.

It brings up an issue about which many parents sending their children off to college this fall are not aware. You may be paying your child’s college tuition and expenses, and covering him or her on your health insurance. But in the eyes of the law, your 18 year old is legally an adult and entitled to the same privacy protections that you are.

This means that even though your child may be relying on you for the majority of his or her support, privacy laws prohibit financial institutions and medical providers from disclosing private information concerning your child to you without his or her authorization.

Under normal circumstances, this may not be a problem. Parents of college students should encourage their kids to be self-reliant and financially responsible. Being away from home gives them an opportunity experience life as an adult for the first time. And encouraging independence is a good thing.

But what happens in case of an emergency? Will you be able to access information about your child’s condition if your child is seriously ill or injured while away at school? Will you be able to help them handle their financial affairs if they are incapacitated and are unable to make these decisions on their own?

Without three important documents, you may not be able to step in when your child needs you most. That’s why you should encourage your college student to get the following documents before heading off to school:

1. Durable Power of Attorney: The Durable Power of Attorney will allow your child to authorize you to manage his financial affairs either immediately or in the future should he become mentally or physically unable to do so. This would authorize you to handle tasks such as paying bills, applying for for social security or government benefits and opening and closing accounts if necessary.
2. Medical Power of Attorney: The Medical Power of Attorney allows your child to authorize you to make medical decisions if he or she is incapacitated and unable to do so. An agent acting under a Medical Power of Attorney is authorized to see the principal’s medical records to make informed medical decisions on his or her behalf.
3. HIPAA Release: HIPAA (the Health Insurance Portability and Accountability Act of 1996) requires health care providers and insurance companies to protect the privacy of patient’s health care information. Those who violate HIPAA are subject to civil and criminal penalties, including jail time, which makes them reluctant to share protected health information without an authorization.
   
   While it’s true an agent under a Medical Power of Attorney has the authority to view the principal’s medical records, the Medical Power of Attorney does not grant authority to the agent until the principal is incapacitated. If capacity is questioned, then HIPAA regulations would prevent access to protected health information.

   This means that even parents may be prevented from accessing their children’s medical information without an authorization, just like the mom above. By signing a HIPPA release your child can authorize doctors to share diagnoses and treatment options with you.

These three documents are easy to prepare and are relatively inexpensive. If you have a child heading off to college this year, it’s important that you discuss the importance of a these documents with him or her.

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A man (who I’ll call “Jack”), recently called me in a bit of a panic. His fiancé (“Jill”), with whom he had lived for many years in a home they purchased together, had been recently diagnosed with breast cancer.

Jill was starting chemotherapy the next day and he was concerned, not only about his her health, but also about the uncertainty of life if tragedy were to strike. What if Jill had a bad reaction to the chemotherapy and died? Would he be able to keep his home and other assets he and Jill had acquired together? Would he be able to settle her estate?

Jack and Jill did some research and decided that it was important that he have the authority to handle her affairs if she died. They also wanted to make sure that he would be able to keep the home they had purchased together, as well other property Jill wanted him to have.

So he contacted me and asked me to draft a durable power of attorney. “That’s all we would need, right?” he asked. The short answer is “no.”

Durable Power of Attorney Expires When Principal Dies

A durable power of attorney allows you to choose a person you trust to handle your financial affairs if you become incapacitated and can’t handle them yourself. If you don’t have a durable power of attorney and become incapacitated, a guardianship may be necessary. Guardianships are expensive and cumbersome and can be avoided with a durable power of attorney.

However, the agent’s power ends when the principal dies. At that point, the personal representative of the estate takes over to wind up the deceased person’s estate. The estate is distributed according to the decedent’s Will if he or she has one, or according to the Texas intestacy statutes if there is no Will. The power of attorney does not control.

The Importance of Seeking Legal Advice

The phone call illustrated the importance of seeking legal advice for estate planning matters.

Had this couple decided to forgo contacting an attorney, they would have probably prepared a durable power of attorney using do-it-yourself document preparation service, believing that it would have been sufficient to accomplish their goals.

Despite their research, they did not understand that the power of attorney expired at death or that it would not control the disposition of his Jill’s assets upon her death. Only a will can do that.

Without a will, Jill’s assets would pass through the state’s intestacy statutes. Since the couple was not yet married, Jack would have no inheritance rights to any of Jill’s property. For more information about how the assets of a single person are distributed, read about the Texas intestacy statutes.

Don’t Procrastinate

The phone call also illustrated the importance of engaging in estate planning early.

I wrote an article last year about Rob Jaffe, a man who was unexpectedly diagnosed with primary amyloidosis, a rare blood disease that took his life in just 46 days.

Fortunately, two years before his diagnosis and death, Rob visited an attorney to have an estate plan made. This allowed him to focus on himself and his family at the end of his life, rather than worrying about whether his legal affairs were in order. He asked his brother to tell his story to impress on others:

how big a blessing it is to know — when their time comes — that they have everything in order, that they don’t need to stress or worry about how things they worked their whole life for are going to turn out . . . I would not want to waste a minute of my life now having to do estate planning or worrying that I live long enough to get documents filed or whatever garbage comes with it.

Tragedy and illness can happen to any of us at any time, so it is important that we be prepared. Had Jack and Jill planned early rather than waiting until an unexpected illness, they would have been able to focus on her treatment and recovery, rather than worrying about legal and financial matters while dealing with the stress of Jill’s diagnosis.

Related posts:

1. What is a Durable Power of Attorney?
2. Does Medical Power of Attorney Grant Agent Unrestricted Authority to Act?
3. What is a Medical Power of Attorney?
4. How Do I Revoke a Medical Power of Attorney in Texas?

In Texas, a Medical Power of Attorney can be revoked in the following ways:

1. You can revoke a Medical Power of Attorney by notifying either the agent or your health care provider orally or in writing of your intent to revoke. Your ability to revoke is not contingent on your capacity to make health care decisions or your mental state.
2. You can also revoke a Medical power of Attorney by executing another one. If you execute a new Medical Power of Attorney, then all prior ones are revoked.
3. Additionally, if you have designated your spouse to be the agent, then a later divorce revokes the Medical Power of Attorney.

Once your physician is informed of your decision to revoke or is provided with your revocation, he should immediately record the revocation in your medical records and give notice of the revocation to the agent and any other health ore residential care providers responsible for your care.

Related posts:

1. What is a Medical Power of Attorney?
2. Does Medical Power of Attorney Grant Agent Unrestricted Authority to Act?
3. What is a Durable Power of Attorney?
4. A Durable Power of Attorney Does Not Authorize An Agent to Settle An Estate (And Other Lessons)
5. How Do I Revoke a Will in Texas?