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Abilities & Limits of Advance Directives in Oregon

An advance directive is a complimentary service when you hire Gruber & Associates, P.C. in West Linn, OR for estate planning. Its scope is limited so it works best with other estate planning documents. While it definitely offers advantages and eases health care decision-making for your loved ones, an advance directive also has its limits. That emphasizes the need for a complete estate plan.

Abilities

An advance directive indicates your health care preferences if you are unable to communicate them to your doctor. It appoints a health care representative who executes these decisions, including any preferences regarding life-sustaining medical treatment.  

Apppoints an Advocate

While many people do not want to consider it, there is a possibility that you will suffer injury or illness substantial enough to leave you unable to communicate or make decisions. While healthcare providers use their best discretion, there is another possibility that their decisions will not match your preferences.

The healthcare representative acts as your voice when you cannot speak. Since most clients appoint someone in this capacity that is close to them, this individual understands your motivation and feels honor-bound to respect your wishes. Many clients choose a spouse, sibling or even a good friend to fulfill this role. If you have someone in your life you would prefer for this duty, it is a good idea to execute an advance directive.

Define Course of Health Care

Health care decisions may have religious inclinations, like Jehovah’s Witnesses and their avoidance of blood transfusions. Other times it is simply a preference for particular courses of treatment.

An advance directive allows specific instructions. You can designate specific doctors, health care facilities, and, if you are terminally ill, your choice for hospice care. There may be circumstances where you prefer to continue palliative treatment at home and avoid future hospital visits. If you have detailed preferences like this, you need an advance directive.

Limit Life-Sustaining Medical Procedures

The best-known feature of the advance directive is your decisions regarding life-sustaining medical procedures. Many clients execute one because they do not wish to be kept alive by machines. Others make different choices.

While an advance directive is sufficient for ensuring your wishes are granted, you may also sign Physician Orders for Life-Sustaining Treatment or POLST. This is an additional document provided by a doctor, clinic or hospital that remains in your file and removes any doubt of your decision. It is presented not only if you are terminally ill but sometimes before surgical procedures. Do not be surprised if one is presented to you if you are admitted to the hospital.

Limits

Advance directives define your course of health treatment but they have their limits. These are reassuring more than inconvenient, especially if you have a finished estate plan.

Indicate Burial Preferences

If you have any burial preferences, you should list them in your will. The advance directive is not an appropriate avenue for expressing this information.

Other options may include pre-planned funerals where you can confirm any religious or personal preferences. If you decide on something different, like donating your remains for study, that requires additional forms and an advance directive is not effective to assure that occurs. Many preferences require additional steps so discuss those first with your attorney before thinking one written note or document guarantees them.

Affect Insurance Coverage

There are concerns that insurance companies may require patients to sign an Advance Directive or face claim denial. This is not legal and any insurance company who insists on this should be reported to the Insurance Commission.

Signing an advance directive has no effect on insurance coverage or at least should have no effect on it. If you are not comfortable with executing an advance directive or feel pressured to do so, do not do it.

Authorize Euthanasia

There are occasional concerns that the Oregon Death with Dignity Act may authorize health care representatives to choose euthanasia over further treatment, However, the law makes that impossible.

To be eligible for death with dignity, a patient must be a resident of Oregon who is 18 years of age or older. If they are diagnosed with a terminal illness where death is imminent within six months, they must also be capable of communicating their own healthcare decisions at the time they request death with dignity. An attending physician determines whether a patient meets these criteria–not a healthcare representative.

Since the patient must choose and self-administer the euthanasia drugs, physicians cannot be involved at all except to determine if the situation is appropriate for this option. Between the mental capacity requirement and the self-administration one, there is no way that a healthcare representative can authorize this course of action–or legally compel a physician to administer the drugs.

It can be difficult to consider these worst-case scenarios, but taking the time to do so offers reassurance and peace of mind. To start designing your estate plan and long-term care decisions, contact Gruber & Associates, P.C. today to schedule an appointment.

Three No-Power-of-Attorney Horror Stories

When you visit the office of Gruber & Associates, P.C. for your estate planning appointment, we frequently suggest other documents in addition to your will or trust. One of these includes a durable power of attorney. This document appoints an agent to handle your financial or business affairs if you are incapacitated or unavailable. It becomes invalid when you die.

This is a fairly simple document that does not add much to your estate planning expenses. When you need it, it is often a dire situation which makes this an essential part of long-term care and planning. If you do not have a power of attorney when you need one, it can make things difficult for you and your family members. Here are three possible horror scenarios if you do not have a valid power of attorney.

Unmanaged Insurance Claims

A power of attorney may go into effect immediately or if you become incapacitated. Since incapacitation often leads to filing a disability insurance claim, you may need an agent to handle that process for you.

However, an insurance company is not going to let just anyone file the forms, grant permission to access your medical records or make decisions during claim processing. Your spouse is not automatically granted this privilege since the law sees married people as unique individuals, not one unit. The only way for your spouse, sibling, business associate or good friend to help you through this process is with a power of attorney. When you appoint any of these people as an agent, they only need to provide the claims adjuster with the power of attorney and that grants them the authority to manage your claim.

Otherwise, appointing an agent to act on your behalf becomes expensive and complex. You will secure disability benefits quicker if you prepare just in case of incapacitation.

Limited Access to Assets

If you do not have a joint checking account with your spouse or you have business assets that are only in your name, your family will not have access to these income sources if you are incapacitated in a hospital bed. The only way your separate assets can be used for your benefit is if you execute a power of attorney.

This can be especially necessary if your incapacitation is for the long-term or you face an uncertain prognosis. The power of attorney may grant permission to a business partner to transfer income to your family or allow your spouse to access a business account.

This not only provides income but assures other functions are carried out too–like paying bills, filling out automatic deposit forms, and managing investments. If you are single, it is unlikely you have a joint owner on your accounts. Unless you want to return from incapacitation with a defaulted mortgage and past-due bills, you want to appoint someone to manage these affairs in case you are unable to do so yourself.

Poor Asset Management

Sometimes, it is a matter of finding the best person for the job. Powers of attorney also apply if you are leaving the country for a while and need someone to manage your property in the United States. Sometimes, that can end with a bad surprise when you return home.

For example, you may allow a spendthrift relative to stay in your home while you decide to live in Italy for the next five years. It may be difficult to trust this relative to pay the mortgage on time or keep utility bills current.

However, with a power of attorney, you can appoint a responsible manager for your home and its expenses. This individual can pay the mortgage and utilities from your account, and demand reimbursement each month from your temporary resident. If they fail to pay, your agent can start eviction procedures on your behalf by hiring an attorney and making decisions throughout the case. Your interests are protected better if you go this route rather than rely on someone who may not follow through.

There are also instances where clients trust their oldest child more than their spouse to make investment and financial decisions. Single people who live estranged from their families may desire that their live-in partner or best friend handle assets in case of absence or incapacitation. Just because an individual is a joint owner or physically present does not necessarily mean your best interests motivate them. You take better control of your situation with a power of attorney.

So when we recommend a power of attorney at your estate planning appointment, do not scoff. Perhaps the circumstances requiring one will never arise. But if they do, you want to make everything as easy as possible for you and your family. Plan for contingencies and make an appointment with Gruber & Associates today to create a solid estate plan.

Wills vs. Trusts II: Do You Need a Trust?

Trusts are subject to misinformation in Oregon. Entire industries exist to scare people out of probate and create these large estate vehicles that are not always necessary. Most clients who fall for these sales pitches would save money by drafting a will and never creating the trust.

When used for the right reasons, a trust protects your family’s interests. If it is created solely to avoid probate, you will lose more money and time than you will save. Here is an overview of what a trust can and cannot do in Washington, Multnomah, Marion and Clackamas counties.