Selection of your agent is the most important decision made when completing your Health Care Power of Attorney (HCPOA).  Your agent will make  health care decisions for you when you are unable to make them for yourself. Before selecting the appropriate person, you should have a understanding of what the job is.  Once the position is understood, select the best candidate to fill the position. After selecting the person, obtain the agent’s consent to serve. Then educate your agent on your desires.  Also, select alternates to act if your first choice is unwilling or unable to serve. Finally, you need to properly implement your plan.

THE JOB OF HEALTH CARE AGENT

The job is to make health care decisions on your behalf if you are unable to make those decisions for yourself. The types of decisions can involve anything from routine health care to the termination of life sustaining treatment.  Here are some of the important qualifications for your health care agent.

  • Knowledge of your preferences and desires.
  • Willingness to honor your wishes rather than the agent’s desires.
  • Depending upon your age and mobility factors, available to attend health care appointments.
  • Must be a strong advocate for your wishes.
  • Emotionally tough enough to make difficult decisions.
  • Your agent must be able to withstand pressure from family members or friends that disagree with the decisions being made.

The job may require other qualifications, but this overview should give you sufficient information to make the proper selection.

WHO SHOULD I SELECT AS MY HEALTH CARE AGENT

Most of the time the appropriate choice for agent will be obvious.  Unlike financial agents where more than one may serve, you must select only one agent to act at a time. When no obvious choice exists or several choices seem equally appropriate, discussing the decision with an experience estate planning attorney can be very helpful. The following are some ideas I have shared with clients in the past about the selection. The following categories are listed in the order of usual selection.

  • SPOUSE-if you are married and your spouse is able to serve, usually you should name your spouse.  Even if your daughter, son, or best friend is a doctor or nurse, the spouse should normally be the decision maker.  The agent still should consult with those with more health care experience before making important decisions.  If you are in a long-term relationship with someone not your spouse, you should carefully determine whether that individual should be named.
  • ADULT CHILDREN-if no spouse is available to serve, adult children usually are the next choice.  When determining whether an adult child should serve, the job qualifications listed above should be carefully considered.  Young adults (18-30) may be bypassed due to the availability of other better choices in the next category.
  • PARENTS, SIBLINGS, NIECES AND NEPHEWS-family members are normally the next category  considered.  Since you have a long term history with these individuals, you should be in a good position to evaluate how they best meet the job qualifications.  When selecting parents, it is important to have an alternate agent of a younger age selected.
  • FRIENDS- a friend may be the appropriate choice.  Usually friends are selected after family members are either unavailable or lack the qualifications your friend may have.

Your choice should be reviewed periodically for appropriateness.  If you have young children when the documents are initially prepared, you may consider adding them as agent or alternate agent as they get older. I recommend naming at least two alternate agents. Keep in mind the age and health of the agent when selecting.

IMPLEMENTING THE SELECTION OF YOUR HEALTH CARE AGENT

Once your agent consents to being named, the following steps should be taken to complete the process.

  • Consult an experienced estate planning attorney to have your HCPOA properly prepared and signed.
  • Discuss your health care preferences with your agent and your medical providers.
    • End-of-life treatment
    • Organ donation
    • When Do-Not-Resuscitate order is appropriate
    • Use of hospice
    • Pain control
    • Admission to a nursing home or other health care facility
  • Make sure your agent and medical professionals have access to your HCPOA
    • Provide agents a copy
    • Direct inclusion of your HCPOA in your medical record
    • Keep a copy in the glove compartment of your car or luggage when travelling
  • Periodically review your HCPOA for potential changes
    • Agent selection no longer appropriate
    • Addressing a new medical condition
    • Check local practices when permanently relocating to another state or spending significant time in another state.

Your entire estate plan including your HCPOA should be reviewed with an estate planning attorney every 2-3 years or sooner if circumstances change.  Failure to have properly prepared documents may result in an otherwise unnecessary and costly guardianship proceeding.

 

Using a form for a Health Care Power of Attorney is riskier than having an experienced estate planning attorney assist you in preparing the document.  Most common problems with self-prepared forms include failing to complete in a legally valid manner, making conflicting or unclear directions to your agent, or failing to provide adequate guidance.  I have personally reviewed hundreds of self-prepared legal forms.  Many of these forms have contained errors, omissions, and conflicting guidance.

BACKGROUND

A Health Care Power of Attorney (HCPOA) is a document which allows you to appoint an agent to make health care decisions for you if you are unable to make them for yourself.  By form, I am referring to a printed fill-in the blank or check the box document. Forms to prepare a HCPOA are available from many sources.  Many can be obtained for free.  In Wisconsin a form may be obtained from the Department of Health Services on their web page, https://www.dhs.wisconsin.gov/forms/advdirectives/index.htm.  Forms are also available from several health care providers and other nonprofit public service organizations.

PROS AND CONS OF USING THE STATE OF WISCONSIN POWER OF ATTORNEY FOR HEALTH CARE FORM

The following are some of the positive aspects of using the State of Wisconsin form:

  • It can be prepared for free.
  • If the form is completed according to the directions, you will have at least accomplished naming an agent to make health care decision on your behalf.
  • Your health care agent will be provided guidance regarding your wishes in certain limited situations.
  • It may help you to avoid a court guardianship proceeding.

The following are potential problems with using the State of Wisconsin form:

  • The form is not properly prepared and witnessed.
  • The “NO” box is selected regarding admission to a nursing home without understanding the consequences.
  • Guidance written in the “Statement of Desires, Special Provisions or Limitation” portion of the form conflicts with other parts of the form or provides unclear guidance.
  • Insufficient guidance is provided to your agent.  If no guidance is provided in a certain area, the agent should make the decision on “what he or she believes to be in [your] best interest.”  In other words, the agent is authorized to make the decision based on what he or she believes is in your best interest rather that what you would actually want.

POTENTIAL PROBLEMS WITH COMPLETION OF OTHER WIDELY AVAILABLE FORMS

First, the organizations that make these forms available should be complimented.  A great public service is being provided by educating the public to the importance of every adult having a HCPOA.  Many of the forms I have reviewed have include some well-drafted provisions.  They also have encouraged people to have important end of life discussions with their loved ones.  In most cases the use of one of these forms is preferable to not having a HCPOA at all.  The following are some of the issues I have observed regarding some of these available forms:

  • For Wisconsin residents, make sure the signing and witnessing of the form complies with Wisconsin law.
  • Watch out for provisions which allow a health care provider to limit the decisions of the health care agent.
  • Be aware that certain directives may conflict with each other.  One issue I have seen deals with the direction to treat curable conditions even when a terminal condition is present. I have reviewed many forms that state no treatment is desired if death is close but also state curable conditions should be treated.
  • The form may contain either too restrictive guidelines for the agent or lack of enough guidance to allow your agent to make the decision you would want.

RECOMMENDATIONS

You should have a HCPOA prepared by an experienced estate planning attorney as part of establishing a comprehensive estate plan.  By establishing a HCPOA at the same time as obtaining the other documents you need, the incremental cost should be less than if the HCPOA is obtained separately.  This cost of preparation is minimal compared to the thousands of dollars that may be saved in unnecessary legal fees or medical costs for unwanted care.

In an emergency you may need to execute a form without the assistance of an attorney.  In those cases make sure to follow the directions carefully and then have your document reviewed by an attorney as soon as possible.

 

 

 

 

 

 

Every adult in Wisconsin needs at least a basic estate plan.  Yes, even a college student buried in debt needs at least two documents.  These documents are a health care power of attorney and a financial power of attorney.  The focus of this basic planning is to ensure the student has someone to make health care decisions or manage finances in case of a period of incapacity.  This article will first provide the Wisconsin definitions for incapacity.  Then I will discuss the importance of naming an agent to make decisions for health care followed by the authority to handle financial matters.

WHAT IS INCAPACITY?

The standards for health care and finances are very similar and can be summarized as the inability to make and communicate an educated decision about the topic in question.  In real life, a college student would most likely fall into this situation due to a temporary condition caused by an accident or a medical problem.  Most parents are lucky in that these situations rarely arise.  But if they did, a few documents can save cost, time, and anxiety.  At the end of this article, the specific definitions are provided.

BUT I AM THE PARENT–WHY CAN’T I DECIDE?

Wisconsin does not have a law allowing parents to make health care decisions for their adult children.  The legal remedy is a guardianship proceeding.  In a recent Wisconsin case, a young adult was seriously injured in car accident.  The child was unable to make medical decisions due to the injuries.  As treatment options were being considered, no one had the legal authority to make a decision.  So instead of being able to concentrate solely on the treatment plan for their child, the parents also needed to be engaged with the legal system to gain the legal authority to make decisions.  This guardianship process is costly and time consuming.  If the adult child had completed a health care power of attorney, the court guardianship would have been unnecessary.  Even if the young adult was married, the spouse also would have lacked legal authority and the guardianship proceedings still would have been necessary.

If the young adult had a health care power of attorney, an agent would have been appointed to make the important medical decisions without the need for a guardianship.  The health care agent would have been selected by the child, not a guardian selected by a judge.  The child also would have been able to provide guidelines to be followed by the health care agent.  The parents then could have been focused on the medical issues without also needing to worry about legal proceedings.

FINANCIAL MATTERS

Most college-age adults want to exercise independence.  Banks accounts, cars, rental agreements are often in the child’s name.  Schools also have very strict privacy rules.  Without a power of attorney for finances, a parent will be hampered in the ability to manage their children’s financial matters.  Banks would be unable to legally share financial information with the parents or other family members.

THE SOLUTION

The simple and low-cost solution to this problem is for the college student to meet with an attorney to have these two types of powers of attorney prepared.  In most cases the student will name the parents followed by adult siblings or other relatives as the agents.  Many of my clients have seen the importance of this advice and as a result asked me to prepare these documents at the same time the parents’ documents are being prepared or if the children are still underage as an eighteenth birthday present for their child.

STANDARD FOR INCAPACITY UNDER WISCONSIN LAW–HEALTH CARE

“Incapacity ” means the inability to receive and evaluate information effectively or to communicate decisions to such an extent that the individual lacks the capacity to manage his or her health care decisions. Wis. Stat. § 155.01(8).

STANDARD FOR INCAPACITY UNDER WISCONSIN LAW–FINANCIAL MATTERS

“Incapacity ” means the inability of an individual to manage property, finances, or business affairs because the individual  . . . has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. Wis. Stat. § 244.02(7).

 

 

A basic estate plan covers incapacity planning and the disposition of property upon death.  Most individuals when thinking about estate planning planning only focus on the later part–death.  When I meet with clients, I always start with the incapacity planning first.  The initial focus should be on matters that can help you while you are still alive.  If you are unable to make decisions about your property and your health care, it is important that you have legally delegated the authority to an agent to make those decisions on your behalf.  Exploration of the the various ways of transferring property upon your death comes next.  The basic tools for accomplishing these goals are the power of attorney for finances, the power of attorney for health care, and a will.

INCAPACITY PLANNING FOR HEALTH CARE DECISIONS

I use two planning tools for health care matters: a HIPAA authorization and a Health Care Power of Attorney and Living Will.  The HIPAA authorization is required due to the passage in Congress of a law entitled the Health Insurance Portability and Accountability Act.  This law is referred to as HIPAA.  You would never know from the title of the law that it includes the provisions under which your health information may be released.  This authorization is prepared in order for you to authorize individuals access to your medical records and to enable health care providers to discuss your protected health care information with those you designate in this document.  In most cases you will want to list your spouse and adult children if applicable.  You may also want to expand this list to include parents and friends.  This authorization is limited to making information available to the authorized individuals.  It does not provide the authority to make decisions on your behalf.  The Health Care Power of Attorney and Living Will serves two basic purposes: it names who can make health care decisions for you if you are unable to make them for yourself and it states your preferences for end of life treatment.  You may also wish to address organ donation.  Even though forms for both a Health Care Power of Attorney and Living Will are available through the State of Wisconsin, many pitfalls exist in their proper preparation.

INCAPACITY PLANNING FOR FINANCIAL DECISIONS

Having a financial power of attorney allows you to name an agent to make financial decisions on your behalf.  Without this document a guardianship would be necessary to grant this authority if you are unable to make decisions for yourself.  During the planning process, you select the best agent and alternate agents to serve in this role.  The extent of the authority whether limited or very broad is also determined.  As an individual ages, additional powers may also be selected to provide for Medicaid planning.  Again, basic forms available through the State of Wisconsin can provide a false sense of security since they are lacking in many provisions an experience estate planner would include.

PLANNING FOR THE TRANSFER OF PROPERTY UPON DEATH

Property is usually transferred upon death through the use of one or more of the following tools:  will, joint tenancy, beneficiary designation including payable upon death or transfer upon death directives, and trusts.  A will is commonly the starting point for families with young children as the appropriate document to name guardians.  Absent that need, deciding the disposition of your property upon your death and the nomination of a personal representative to administer your estate are the will’s other basic purposes.  Depending on your family situation, a will may or may not be an appropriate planning tool for you.  Many people believe that a will is the appropriate starting point because they are familiar with the basic concept of getting a will.

In conclusion, most planning for incapacity involves the same documents.  The complexity of these documents (powers of attorney for health care and property) varies based upon your situation.  The decision, however, as to whether a will is the appropriate tool upon which to transfer property upon death is not very straightforward.  Whether a will should be used in your estate plan should only be determined with the assistance of a experience estate planning attorney.

I prefer not to overburden a prospective estate planning client with unnecessary homework prior to our initial meeting.  Procrastination is the biggest obstacle to planning.  My approach is to avoid providing an additional obstacle to getting the process started. So how much preparation is necessary to make the meeting productive for all of the participants.  First, I will describe the two extremes of preparation: no preparation and over-preparation. I will then conclude with describing the middle ground which usually leads to a very productive meeting.

LACK OF PREPARATION

It very seldom occurs that a meeting is totally unproductive due to a lack of preparation. The biggest cause of an unproductive meeting is a lack of attendance by all the necessary participants.

For married couples, both spouses need to be present.

  • The only exceptions to this rule are the infrequent situation where each spouse uses their own separate estate planning attorney or where illness or disability make it impractical.  If that might be the case, it should be discussed at the time the appointment is scheduled.
  • If  a spouse is ill or disabled, often arrangements can be made to meet at that spouse’s location.  Then both spouses can be available together.
  • When one spouse claims they can speak for another spouse and attends alone, usually a second meeting with the other spouse is also needed.
  • Our firm’s policy is that both spouses must be present unless a justification can be provided at the time the meeting is scheduled.

Another potential situation with a missing participant is when a third party schedules a meeting to discuss planning for someone else.  Usually it is a child trying to initiate the planning for a parent. It is critical to effective planning that the parent or parents participate from the start.  This safeguards the process to ensure the plan is being prepared according to the parents’ wishes not the child’s.

The next most common cause of an unproductive meeting due to the lack of preparation is to arrive at the meeting without bringing any of the requested information.

  • Our firm provides a meeting confirmation letter or email which lists what should be brought.
  •  It is understood that sometimes everything requested might not be available.  It is just requested that you try to do your best.

OVER-PREPARATION

If a client over-prepares for the initial meeting, it is usually due to a misunderstanding of the estate planning process.  The goals of this article is to explain the level of  preparation that gives the planning process the best opportunity to succeed.  The over-prepared client is the one that believes they need to have all of their estate planning questions resolved before the initial meeting.  The estate planners job is to guide the client through the process.   You are not expected to have all your issues resolved before you arrive.  It can be helpful to read a basic guide or attend an educational seminar.  Our firm provides both.  Still these steps are not required before we meet.  Often times reading multiple books, articles, and attending seminar after seminar is just another form of procrastination.  The best source of estate planning information should be the attorney you will be meeting with.

MIDDLE GROUND OF PREPARATION

Preparation for the initial estate planning consultation falls into three basic categories: people, places, and things.  Our firm and most firms provide an organizer to complete before the initial meeting which captures all three of these areas.

  • People:  The estate planner needs to obtain biographical data on you and your family members. By having this information available, time can be spent learning  about you and these individuals rather than spending the appointment time copying names, addresses and birthdays.
  • Places: The addresses of the real estate you own.
  • Things:  A listing of your bank accounts, investment accounts, and retirement accounts.  If you have existing estate planning documents, they should be provided for review.  The estate planning attorney needs to know this information to make the best recommendation for your estate plan.

You should also be prepared to discuss: who you trust to handle your estate (property) and health care decisions if you are unable to make them yourself; who should receive your property upon your death; and any other concerns you might have.  This preparation can usually be completed in a few hours.  In addition to preparing for your meeting, you might also be surprised to discover how much wealth you have accumulated.  But even if your estate is modest, an experienced estate planner will be able to recommend the appropriate plan for you.

I know some excellent plumbers and electricians that work in the area where I live.  I occasionally use their services. But I almost always try to do it myself first.  I am usually very careful before I start a project by first reviewing videos on YouTube or reading a how to manual.  Many suppliers of parts have detailed videos or customer service representatives to provide guidance.  I acknowledge that many self-help or do it yourself resources also are available for wills, trusts, and powers of attorney.  Free forms are even available from various State of Wisconsin websites. So, I feel like a bit of a hypocrite when I say the answer to the question should you do it yourself is no.   I feel less of a hypocrite when I recall that after my son was born and I was already had been an attorney for five years, I retained a law school classmate of mine to prepare my first will. The following are my three best reasons why estate planning is not a do it yourself project.

YOU DON’T KNOW WHAT YOU DON’T KNOW

Dedicated estate planning attorneys spend countless hours learning how to counsel clients and prepare wills, trusts, and powers of attorney.  Before I attempted to prepare my first will for a client, I spent three years in law school and over a hundred hours attending specialized classes on estate planning and reviewing materials from legal publishers.  Before preparing my first revocable living trust, I attended forty hours of training from leaders in the field of trust planning.   Despite all this training, I was still apprehensive about the initial plans that I prepared.  To make sure my clients were being provided quality service, I belonged an organization that provided me with access to nationally recognized experts in the field.  Even after almost twenty years in the field, I still occasionally need to bounce ideas off of other accomplished estate planners.

During almost every initial meeting I have with clients, I hear in response to several of my questions,”I never thought of that.”  Since most non-lawyers would not know where to start or end, I recommend an experienced estate planning attorney to lead you on your way.  Handling issues involving underage beneficiaries (minor children and grandchildren), beneficiaries with disabilities, and second marriages require very special attention.

MISTAKES CAN BE VERY COSTLY

Mistakes on self-prepared documents range from not having the documents properly witnessed to using documents not appropriate for Wisconsin residents.  Improperly prepared documents are normally unenforceable.  Even if a will or trust is perfectly prepared,  other issues may not have been properly considered.  For instance, failing to update a 401(k) beneficiary designation following a divorce can lead to an ex-spouse receiving the proceeds instead of your children upon your death.  An experience estate planning attorney will know that coordination of matters outside the usual planning documents can have real significance.  An effective estate plan needs to coordinate the estate planning documents with beneficiary designations for life insurance, retirements accounts, and employee benefits.  An improperly prepared beneficiary designation could lead to an avoidable probate proceeding costing thousands of dollars and months of delay.  Worse than the financial cost could be the emotional cost of the wrong person inheriting your estate.

THE COST OF A PLAN LIKELY IS LESS  THAN YOU WOULD THINK

If you inquire, an estate planning attorney who will meet with you initially at no cost should be available in your area.  So the cost to find out the fee for an estate plan should not discourage you from seeking professional assistance.  In order to make the best use of your time and the attorney’s time, please read my entry on how to prepare for an initial estate planning consultation.

My policy is to provide a free initial consultation.  At the end of the initial meeting, you will be quoted a fixed fee for the services which are recommended.  I usually spend up to 90 minutes with a single individual and 2-3 hours with a married couple. At the end of the meeting I make recommendations and quote a fixed fee.  I urge you to contact an experienced estate planning attorney to assist you with preparation of a plan. If you live in Southeastern Wisconsin, feel free to contact me if you are interested in learning more.