Posted May 1st, 2005

Planning Matters

In recent months, various stories in the news have caused many of us to consider our own healthcare wishes and plans. Most persons would agree that it would be prudent to take appropriate steps to make sure that their wishes are known in the event that they are unable to speak for themselves. But there are many questions and issues to consider: Are they willing to donate organs to benefit potential transplant recipients? What are their wishes concerning extraordinary healthcare measures if it is determined that there is no chance of a meaningful recovery? Who should make decisions concerning treatment?

To the extent possible, various legal documents that reflect one’s wishes can relieve loved ones from having to guess about personal preferences at a time of severe emotional stress. These documents can be an important part of an overall estate plan. An understanding of such documents and how they work, or do not work, is important to gift planners and donors alike. This month’s “Planning Matters” column examines living wills and other healthcare-related documents.

Question: What types of legal documents allow individuals to make their healthcare wishes known?

Answer: A broad array of documents can play a role here: living wills, durable powers of attorney for health care, advance directives, healthcare proxies, and other declarations concerning your wishes. State laws generally govern these documents, so it is difficult to generalize on a national basis. Additionally, the 1990 Patient Self-Determination Act requires healthcare providers like hospitals or long-term care facilities that receive Medicare and Medicaid reimbursements to recognize living wills and healthcare powers.

Question: Can you give an example?

Answer: Drivers’ licenses in most states allow individuals to make an anatomical gift or organ donation in accordance with state statutes. Usually this form must be dated and signed by the donor and two witnesses. Nationally, there has been an increase in organ donations that have given the gift of sight or even life for recipients.

Question: Should “living will” language be included in a will or living trust?

Answer: Most attorneys would advise that healthcare instructions be included in a separate legal document and that copies be provided to a number of loved ones. These documents may be amended or revoked at any time prior to death or incapacity. Like the anatomical gift directive, these forms must be signed and witnessed in accordance with state laws.

Question: What, then, is a “living will”?

Answer: It is a legal document that outlines one’s wishes to the professionals and facility that are providing health care in the event a person is incapacitated and unable to otherwise communicate with caregivers. Even with a well-drafted living will, questions will often arise, or it may not be presented at the time that medical treatment commences.

Question: How can these questions be dealt with?

Answer: A second document can be drafted to give a specific person the power and authority to act on one’s behalf. This document is often called a durable power of attorney for health care, healthcare proxy, or advance medical directive.

Question: Where can a person obtain additional information on living wills and other healthcare directives?

Answer: In addition to the library and bookstore, information can be found on the Internet. Try a search for “living wills” or “healthcare directives,” or check www.aarp.org, www.abanet.org, or www.caregiver.org for more information.

Question: As a gift planner, how can I utilize this information?

Answer: Recognize that this topic is an important reason for people to consider their overall estate planning needs. It is relevant to all of your donors instead of just the relatively small group who are concerned about federal estate taxes. While this topic is on people’s minds, you may wish to consider marketing on broad estate planning issues this spring and summer. The issue of living wills and related documents may be included in cover letters, brochures, newsletters, seminars, or individual conversations.

Remember that a variety of tax and non-tax factors prompt people to consider their personal planning needs. For example, a person’s religious beliefs can be an important factor when deciding the content of a living will. Charities should be very sensitive to the personal nature of issues surrounding a living will when communicating with their constituency on this subject. There has been no shortage of information in the general press about the need to address the relevant issues. In any event, those persons who talk to their advisors about the need for a living will may well end up revisiting their complete estate plan, which in turn may include charitable provisions.

The publisher of Give & Take is not engaged in rendering legal or tax advisory service. For advice and assistance in specific cases, the services of your own counsel should be obtained. Articles in Give & Take may generally be reprinted for distribution to board members and staff of nonprofit institutions and other non-donor groups. Proper credit must be given. Call for details.

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