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A New Year's Resolution Worth Making For Your Family's Sake

Written by: Denis P. Dillon

(Published in the Portsmouth Herald, December 2010)

On New Year's Day, most of us take a moment to stop and examine our lives and resolve to make a change or two. We'll eat better, we'll exercise more, we'll spend less time watching television and more time volunteering. While all certainly worthy efforts, one incredibly important resolution to consider that will benefit you and every one of your loved ones can be accomplished in just a few minutes — the execution of an advance health care directive.

Over the years, we have seen striking examples of why advance health care directives, or "advance directives" for short, are vitally important. Three prominent examples are Karen Ann Quinlan, Nancy Cruzan and Terry Schiavo.

Catastrophe struck these young women at a time when none of them had signed an advance directive. Therefore, their families resorted to a probate court to authorize a guardian to make health care decisions. Their families' lives were complicated and made stressful by court actions, press coverage, protesters from both "Right to Life" and "Right to Die" groups. In the case of Terry Schiavo, Congress intervened! These examples highlight the tragedy of not having an advance directive, since most, if not all, of the controversies swirling around the individuals and their families could have been avoided with an advance directive.

These cases underscore the importance of advance directives. Although these sensational cases captured the attention of the nation, every day in health care facilities throughout the country there are patients, young and old, whose families struggle with issues of incapacity. As the so-called, baby boomer generation pass into their sixth decade, these issues will only be compounded.

Americans are living longer, creating an unprecedented set of pressures upon families. Increased longevity requiring additional health maintenance is a primary pressure. Advancing age inevitably leads to a decline in general physical and mental capabilities. This decline raises important legal questions and challenges for aging individuals, their families and for health care providers. Advance directives address these challenges.

Many people are surprised to learn that in New Hampshire, once an individual has been found to be unable to make medical decisions for themselves, family members are not authorized to make medical decisions for them, unless such a designation has been made in an advance directive. Therefore, without an advance directive a spouse, child or parent will be forced to appear in probate court to request that the court appoint them as guardian. This is even the case for parents with children over the age of 18 who are students.

As a result of the U.S. Supreme Court decision in the Nancy Cruzan case, many states enacted provisions creating advance directives. Each state specifically provides what is covered by an advance directive and the formalities involved in signing one, such as the requirement for witnesses, and perhaps a notary public. For instance, while New Hampshire adopted a specific format, some states, such as Massachusetts, did not. Although many states recognize advance directives signed in another state, when moving to a new state, it is important to review the law and the advance directive.

It is critical to note an advance directive cannot be signed unless an individual is legally competent. The benchmark for signing advance directives is testamentary capacity, which is the minimum legal capacity required to make a will. In some cases, a contemporaneous evaluation by a physician or a psychologist may be warranted.

An advance directive is a prior grant of authority to an agent to make health care decisions for the principal/patient. The agent's power to make decisions springs into effect upon the incapacity of the principal/patient. Under most state statutes, the principal's medical care providers will determine the principal's incapacity at the time of treatment.

The choice of the health care agent is crucial. Obviously, the agent needs to be someone who can make life and death decisions. Before choosing an agent, the principal and prospective agent should discuss the principal's wishes and the agent's ability to deal with life and death decisions. It is also wise for the principal to name an alternate agent in the event the primary agent cannot or will not act. New Hampshire allows for co-agents to be named, that is two or more persons authorized to act together. However, this can create problems when co-agents disagree on treatment.

If a hospital patient has not signed an advance directive and no longer has legal capacity to sign such a document, New Hampshire law requires a court appointment of a guardian to act on the patient's behalf. The appointment of a guardian is a formal public legal process. An advance directive is an attractive alternative to a guardianship.

As the much publicized controversy in the Schiavo case dramatically highlighted, there are widely divergent views on end of life decisions. Advance directives help individuals minimize the potential for the kind of strife that divides families, the country and courts. Simply choosing in advance someone to make medical and end-of-life decisions reduces stress in an otherwise stressful situation.

Denis P. Dillon is a member of the McLane Law Firm's Trusts and Estates Department and practices in the areas of taxation, estate planning, probate law, and elder law, including Medicaid planning. He can be reached at [email protected].

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