How to Stop Exclusion of Loved Ones During Times of Crisis Before It Happens

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We hear the stories all the time about loved ones being excluded from hospital or hospice rooms because the family does not want him or her there. These days many people choose to live together rather than getting married. This only poses a problem when their companion is dying or hospitalized and the rest of the family decides the companion should be excluded. If there is nothing to state otherwise, the family can do this causing much pain to the companion and ignoring the desires of the loved one. It is a heartbreaking situation that could be remedied through advanced medical directive planning.

Visitor passIn 2010 a federal rule was instituted giving patients the right to designate who they did and did not want to see while hospitalized. The rule was to promote an equality of sorts by not giving exclusive visiting rights to family only. However, when a patient is not conscious or is unable to voice what visitors they want, it then falls on the person the patient has designated as their agent to speak for them in those circumstances. The agent then decides who will and will not be seeing the patient. If there is no designated agent then the family decides. Sadly, this is how family can sometimes exclude companions.

What is an advanced medical directive? A living will, a medical power of attorney, or a declaration of life. Generally living wills and medical powers of attorney tell doctors, hospitals, family and the world what you want to be done in the event you cannot voice your opinion on your medical care whether because of mental incapacity or medical situation (e.g., coma, persistent vegetative state, etc.). Many different things go into these documents regarding whether or not to use feeding tubes or electronic devices to sustain life or the appearance of life. There are requirements that dictate consultation with more than one doctor. Essentially everything is laid out for your agent and a doctor or doctors to follow as to your care.

hipaaA remedy would be to add to your medical power of attorney and living will that you want your companion to have equal access to you as if he or she were family. A simple paragraph added to both the living will and the medical power of attorney can prevent the exclusion of a companion from your side in the hospital, hospice or care facility. Also adding the companion to a HIPAA release for your medical information gives him or her access to your medical records and allows a doctor or hospital/facility to speak with him or her directly.

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Part of what a living will and medical power of attorney are supposed to accomplish is making sure your wishes are followed at times when you cannot participate in your care. Establishing that either: your companion is your agent for health care or is someone you want kept in the loop and allowed access to you when you cannot voice it yourself is important. Directly expressing that lets doctors, facilities, hospitals and courts know what you are expecting and what you want when it comes down to it. It takes the guess work out of what you would want to have happen.

Everyone would like to believe such a situation would never happen to them. However, a medical crisis does not always bring out the best in everyone. It is better to prepare for the worst and hope for the best. Talk to your estate lawyer about options and planning.

Written by June F. Bourrillion, Esq. for http://www.rkymtnlaw.com

Who Is Taking Care of Jane Doe

Can facilities in Colorado gain control of patient assets?

nursing home

Alzheimer Disease, dementia, and other illnesses can steal away the memories of our loved ones and incapacitate them to the point they cannot take care of their own needs and finances. When this happens, if a power of attorney is not in place, families can apply to the courts for the appointment of a guardian and/or conservator. We shared an article on our Facebook page (“Bourrillion & Geiger, LLC on Facebook) regarding nursing care facilities in Delaware applying and receiving guardianship over some of their residents to satisfy the costs of care for those residents. It triggered a concern in many on whether that can happen in Colorado.

A guardian serves to help make decisions about the support, care, education, health and welfare of the “protected person.” Guardians are usually appointed when a person needs help making effective decisions about their own care. Much of the time this happens when the individual is elderly, or suffering from a disease like Alzheimer’s or dementia; or if the individual suffers from some cognitive deficiency – closed brain trauma, diminished I.Q., etc – which affects them making good decisions for their care. It does require that a doctor familiar with the person recommend the need for a guardian.

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Under the Colorado Probate Code guardians and conservators can be appointed for individuals who are incapacitated or cannot manage their own care and finances. Specifically, §15-14-310 of the Colorado Revised Statutes states which persons have priority of appointment in these cases and what restrictions exist. Generally, family members seek out these appointments to help elderly parents, aunts, uncles, etc. when their minds start to fade. Barring certain circumstances family allows has priority of appointment as a guardian/conservator.

In addition, to their priority of appointment, family members can also serve in a dual role of guardian and conservator, where a third unrelated party may be barred from appointment to both positions. This is to prevent fraud and to safe guard the person, and their assets. In Colorado an owner, operation, or employee of a long-term care provider where the protected person is receiving care cannot be appointed unless they are related by blood, marriage or adoption. A safeguard that Delaware did not have which lead to facilities getting appointed as guardians and taking all the patient’s assets and money.

Lonely wheelchair

For the most part it is usually family who is appointed to these fiduciary positions. However, when there is no family then friends, accountants, other persons familiar with the person or those who accept judicial appointments from the court can serve in that capacity. The biggest problem with an unfamiliar person holding this role is that it can cost the protected person money for their services whereas family and/or friends will usually not charge for their time.

The purpose of the probate code is to protect the elderly, incapacitated and deceased. When a state fails to keep up with the times or give a hard look for loopholes in their laws it can be devastating to persons in this position. If you have any questions, you can always contact an attorney for advice.

Written by June F. Bourrillion, Esq. for http://www.rkymtnlaw.com

End of Life Challenges and Planning

Anelderlyyone who has gone through the passing of a loved one, be it close friend or family, knows how much an estate plan, medical directives, and having someone you trust to get you through it really means.  Many times estate planning lawyers have yet to go through the kind of sadness and hard decisions that actually face our clients. From personal experience it is one of the hardest things you have to do.

Terri Schiavo’s family court battles were a learning lesson for the entire country on what can happen when people closest to you do not agree on what should be done with your medical care.  It had people rushing to take care of things like living wills and end of life decisions. The underlying issue from Ms. Schiavo’s situation was not having the right paperwork in place, but the sadness of her family who needed to let go and who could not. That is the sadness and harsh reality for those of us who hold medical directives for friends and family. My own experience is not unique in this.

Shortly after graduating from law school I went to work with my mentor, Marshall, who was an inspiration to me. I had worked with him and his wife since 1993. They were a second family to me.  In 2004, we lost his wife unexpectedly.  Afterwards, Marshall had many thoughts about how and who he wanted to take care of his medical decisions if he could not. Part of his decision, Marshall explained to me, was that he loved his son too much to put him in that position. A fear that his son would second guess himself or harbor regrets was paramount to his decision to ask me to do this for him.  I advise all my clients to sit down and discuss in detail what they want and how they want these things to happen, and that is what we did. It is invaluable to have that discussion in the back of your mind when you are making decisions.  There were many times when I had to think back to the discussion Marshall and I had about what he wanted and what he would want me to do.

Advanced-Health-Care-DirectiveLiving Wills and medical directives can give more guidance than simply “I don’t want to be in a vegetative state.” Yes, they dictate the kind of care you want and, if you reach a persistent vegetative state, it details how long you want those measures to done.  However, a medical directive can be more than that. It can include consulting with trusted doctors and persons, give timelines, direct the kind of care you want B nursing home vs. in-home care, hospice, and many other things. As detailed and in depth a talk as you can have with the person you want to handle your affairs is vital. You have to trust the person you are appointing to be in charge of you to make the decisions you want made regardless of the difficulty of the decision.

thinkingThe decisions for Marshall were not easy. He would be in and out of the hospital in the next couple of years. When he was not able to make decisions, it fell to me.  As much as possible I discussed things with his son before deciding what to do. Inevitably there is a point where what you know your loved one wants is not what the physicians recommend. An emergency room doctor told me once to let Marshall pass.  He did not know what was ailing Marshall, but told me not to have him treated or diagnosed. There was a terrible conflict within me about this advice.

In the end, it was the living will which helped me most. All medical directives are somewhat flexible and you can add in additional information much of the time. The one thing that Marshall added to his was to speak to a certain doctor he trusted.  In the end Marshall was treated and eventually brought home to hospice care. However, that one directive stating to consult his doctor was the saving grace of the evening. It also allowed me to share the burden with someone who was not “in the middle” of things. I encourage all clients to add details such as that to any medical directives they have drawn up.

What I had to do was step back and look at what my heart said and what Marshall had told me he wanted. The biggest question everyone has to face is, “Am I doing this for myself or for my friend/father/mother/etc.”?  The discussion we had years before was helpful in determining what should be done. Marshall did not want to pass in a hospital and he did not want to be kept alive with no hope of regaining his life.  When he did pass he was at home surrounded by his son, family, and me.

hands-medHome hospice and hospice care in general is a blessing to families going through the end of life with loved ones. The care and consideration for the patient and those who love them is phenomenal.  Watching someone go through the end of life is overwhelming. The sadness, loss, grief, anger, and many other emotions crowd in and out of a person minute by minute.  Hospice and hospice nurses are unique in giving the patient comfort and dignity in their last days which also comforts their loved ones. It gives everyone a chance to say good-bye and express their love.

The person you ask to make these decisions for you is someone you have to trust absolutely. Talking to them about your expectations and desires should not be avoided.  If you trust them to make your decisions, you have to communicate to them what you want that to look like. That person is taking on what can sometimes be overwhelming decisions.  They have to be strong enough to make the right decisions for you and follow your directions and desires. Having medical directives in place which detail your desires assists doctors in treating you and in advising your designated agent.

Written by June F. Bourrillion, Esq. for http://www.rkymtnlaw.com