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Experienced, Compassionate Legal Guidance For The Issues Of Aging

Advance Directives – Giving Your Family Peace Of Mind

Illness and infirmity increasingly take their toll on most of us as we age. We would prefer to maintain our mental faculties and ability to communicate clearly until we die. In reality, you cannot predict if you will be this fortunate, or if Alzheimer’s disease, dementia or another chronic neurological illness will take away your ability to handle your own health care decisions someday.

This is why an advance directive is a critical part of any comprehensive estate plan. Our legal team at Vincent & Romeo, LLC includes an attorney prepared to guide you through establishing your advance directive to ensure that you maintain control over end-of-life care should you ever become incapacitated and unable to communicate.

Most advance directives contain three key documents: a durable power of attorney for health care, a living will and a CPR directive.

Aspects Of A Durable Power Of Attorney For Health Care

A. Definitions

  • Power of attorney: A written legal document, authorizing someone to act on your behalf, which specifically addresses medical and health care issues.
  • Durable power of attorney: A power of attorney that remains in effect even if you later become incapacitated.
  • Principal: The person making the power of attorney.
  • Agent (or attorney-in-fact): The person appointed by the principal to act on the principal’s behalf.

B. Requirements for making a power of attorney

  • The principal must be at least 18 years old.
  • The principal must be competent.
  • The document must be signed by the principal.
  • The document must be notarized.

C. What is included in a power of attorney?

  • A power of attorney can be very broad and general.
  • A power of attorney can be for a special or limited purpose.
  • A medical power of attorney can address access to medical records, authority to consent to or to refuse treatment, choosing medical providers, etc.
  • A general durable power of attorney can grant authority to conduct baking transactions, pay bills, sell assets, deal with insurance companies, etc.
  • A power of attorney can be “springing,” which means it becomes effective only if and at the time the principal becomes incapacitated.

D. What can be accomplished with a power of attorney?

  • A general power of attorney gives the agent the legal power and authority to do anything the principal can do.
  • A special or limited power of attorney gives the agent the legal power and authority to do only those things specified in the power of attorney.

E. Advantages of a durable power of attorney

  • If the principal later becomes disabled or incapacitated, the agent can act on behalf of the principal without the necessity of court intervention.
  • The principal can determine how much authority he/she wishes to delegate, to whom the authority is delegated and what rights will be affected.
  • Having a power of attorney does not mean that the principal is giving up the right to act for himself, rather, it is like appointing a deputy.
  • A power of attorney removes the burden and possible guilt of making a difficult decision for a loved one.

F. Terminating a power of attorney

  • A power of attorney automatically terminates upon the death of the principal.
  • The document itself can state a specific termination date.
  • A power of attorney that is not durable terminates upon the incompetency of the principal.
  • A principal may revoke a power of attorney at any time so long as he/she is competent.

Benefits Of A Living Will

A. Definitions

  • Living will (called a “Declaration as to Medical or Surgical Treatment” in Colorado): A written document which allows you to state, in advance, your wishes if you are unable to provide further instructions regarding the use of life-sustaining procedures if you have a condition which is not curable or reversible and which is terminal.
  • Declarant: The person who makes a living will.

B. Requirements for making a living will

  • The declarant must be at least 18 years old.
  • The declarant must be competent at the time he makes the living will.
  • The living will must be witnessed by two witnesses who have no interest in the declarant’s estate and who are not the declarant’s health care providers.
  • The living will should be notarized, although not required.

C. When is the living will used? The following four events must occur before a living will becomes effective:

  • The declarant’s condition must be terminal.
  • The declarant must have been unable to communicate responsible decisions concerning himself for a period of seven days or more.
  • The declarant’s attending physician and one other physician must certify to the above facts in writing.
  • There must be a question as to whether life-sustaining measures should be withheld or withdrawn.

D. What does the living will do? The living will allows the declarant to decide whether life-sustaining procedures will be withdrawn or withheld and whether he will receive artificial nourishment.

E. Advantages of a living will

  • A difficult decision about an emotional and sensitive issue can be made while the declarant is still competent.
  • A living will allows the declarant to die with dignity, under circumstances he has chosen.
  • A living will removes the burden of making a very difficult decision from loved ones.>
  • A living will is a clear indication of the declarant’s wishes in the event of a dispute.
  • A living will can reduce the medical expenses incurred in a last illness.

F. Disadvantages of a Living Will

  • The living will is effective in a very narrow range of circumstances.
  • Defining what constitutes “terminal” may be difficult and subject to interpretation by different physicians.
  • A parent, adult child, spouse, or agent under a power of attorney can challenge the validity of the living will in court.
  • Some believe a living will violates moral, ethical, or religious beliefs.
  • A living will may override the provisions of a health care power of attorney.

G. Terminating a living will: A living will can be revoked orally, in writing, or by destroying the document.

Cardiopulmonary Resuscitation (CPR) Directive

A. Definitions

  • Cardiopulmonary resuscitation (CPR): Measures to restore cardiac function or to support breathing in the event of cardiac or respiratory arrest or malfunction. CPR includes, but is not limited to, chest compression, delivering electric shock to the chest, or placing tubes in the airway to assist breathing.
  • CPR directive: A written advance medical directive pertaining to the administration of CPR.

B. What does a CPR directive do?

  • The CPR directive allows the adult to refuse CPR.

C. What if you do not have a CPR directive? In the absence of a CPR directive, consent to CPR is presumed.

D. Termination of a CPR directive: Either the person who made the CPR directive or an agent under a power of attorney or a proxy decision-maker can revoke a CPR directive.

Experienced And Caring Estate Planning: Vincent & Romeo, LLC

Discuss with our lawyer how an advance directive fits into your estate plan and how to tailor one to your specific needs. Contact Vincent & Romeo, LLC, at one of our offices to schedule an initial consultation. Call 303-500-5859 in Englewood or 303-720-7260 in Boulder County. All communications will be kept strictly confidential.