Health

What if you're too ill to express your wishes for medical care?

It's taken a couple of years and a few wake-up calls, but 58-year-old Dave Durkin of Parksville has planned for the dreaded "what if?"

"I'm now the oldest living Durkin male," he says, referring to his father and older brother, both of whom died in their 50s.

He remembers what it was like following his father's unexpected heart attack at the age of 54.

"He literally walked into his office, put down his Thermos and dropped dead," he says. "In the weeks after, my mom scrambled. She had no idea where anything was. ... I remember she got together with my brother. 'This is where all my stuff is. I want you to know, because Dad didn't tell me.'"

So, following Durkin's commitment ceremony eight years ago, he got a start on the paperwork. As a gay man, he knew it was critical in order to protect his partner.

And it wasn't until a bout with cancer in 2007 that his living will was signed.

"I had some things in place before," says Durkin. "But it's all in order now, because of Mom."

His mother died of colon cancer in December at the age of 80. As the oldest son, he was named her health-care proxy.

"As hard as this was, she made it easier for us," he says. "She didn't want us arguing over her care. She set everything up the way she wanted it. She made it clear after her surgery that if 'it's' tomorrow, that's OK; she was ready. She wanted no heroics, no machines, just comfort measures. 'Let me go. I have no regrets.'"

One of the greatest gifts

Planning like this, in fact, is one of the greatest gifts you can give to your loved ones.

"There's such an emotional and financial toll on the survivors when the work isn't done ahead of time," says Bonnie J. Lewis, R.N., coordinator of the Caregiver Resource Center at Cornell Cooperative Extension of Sullivan County.

"When you're dead or incapacitated, you won't be worrying about your assets," says Mark G. Aberasturi, a Goshen lawyer whose focus has been almost exclusively on elder law and estate planning for the past 10 of his 20 years in practice.

"But as a generation, the baby boomers are not prepared — although their parents typically are," says Aberasturi, whose clients are, by and large, age 65 and older.

Ironically, many of his elderly clients are brought to the office by their adult children, who haven't given any thought to "what if?" in their own lives. "We have to come and see you sometime," is often their collective response to him.

But sometime is now.

"A person my age, and I'm 46, probably has kids in the 5-to-15 age range," he says. "They need to be thinking about them, and their spouses. Or what if both parents are killed in a car crash? Who is going to take care of the children? And do I really want my kids to have a half-million dollars in life insurance, plus the house and retirement accounts, at the age of 18?"

That's where a revocable living trust comes in, which would put the assets in a trust, make provisions for the maintenance, health and education of the children and then allow for larger distributions in increments, often at the ages of 25, 30 and 35.

And again, using the all-too-common scenario of a car crash, this time resulting in traumatic brain injury rather than death, what are the person's wishes? It doesn't matter that a person might be in a coma with little chance of recovery. It doesn't matter that the person might have often told his loved ones that he doesn't want to be kept alive on life support. If there are no advance directives, the alternative is going through the courts, a lengthy and expensive procedure, he says.

"And because it's enforced through the court, it's a matter of public record and no longer private," says Aberasturi."A tragic accident can happen to anyone. And the court might not OK what's been planned (after the fact)."

So it's up to everyone to face that "what if?" to ensure their wishes are adhered to and their assets are protected."It's totally legitimate, on the up and up and recognized," says Aberasturi. "It's all about planning ahead and playing by the rules that the government has set."

Why have advance directives?

Advance directives typically include the health-care proxy, living will and durable power of attorney.

Lewis conducts advance-directives workshops for seniors at Cornell Cooperative Extension of Sullivan County in Liberty. "The health-care proxy simply names the person you feel comfortable making medical decisions for you because you can't speak for yourself if that 'what if?' happens," she says. "The living will gives more guidance to the health-care proxy in general terms, because all scenarios can't be projected."

The living will is a document that specifies what types of medical treatments are desired, such as pain relief, artificial hydration and nutrition, the use of ventilators and cardiopulmonary resuscitation, and under what circumstances.

Hospitals, doctors and other health-care facilities are legally required to honor the decisions of the appointed health-care agent.

Perhaps a proactive emergency-room doctor is poised to save your loved one's life at all costs — including a feeding tube and intubation — following a devastating stroke. However, the doctor acknowledges that with 75 percent of her brain destroyed, your loved one would, at best, be bedridden, unable to speak and require total care should she survive the immediate crisis.

Knowing a patient's wishes, and backed with the proper documentation, the health-care proxy can direct a course of palliative care instead, says Lewis.

"Yet, without a health-care proxy, the person would automatically be hooked up to machines, at potential great expense to the family and ultimately, to the state. ... A spouse is responsible for a spouse's medical bills, and parents are responsible for their minor children's medical bills," says Aberasturi.

The third directive is a durable power of attorney, which designates someone to act on his or her behalf in day-to-day matters while the individual is medically incapacitated.

"A power of attorney can be dangerous in the wrong hands," says Aberasturi. "That person can cash in stocks, go to the bank and make withdrawals, change beneficiaries on life insurance policies. ... The new power of attorney as of last September limits the agent's power."

Now, the agent's authority is clearly delineated over several pages of specific acts ranging from authority in terms of bank accounts to changing beneficiaries, to making gifts to themselves.

Completing the documents is the first step; next, they need to be accessible when needed.

"Don't keep these documents locked in a safe-deposit box," says Lewis. "That doesn't help in an emergency. Make copies for the designated proxy, your lawyer, doctor, have it in your medical records, your wallet."

A copy of the health-care proxy can be placed in the File of Life, a small plastic pocket with a magnet that sticks on the refrigerator. Inside the File of Life is also a form containing pertinent medical information. A "File of Life" sticker can be placed on the main door used to alert paramedics.

Avoid the pitfalls

Certainly, if there are minor children and/or assets, a last will and testament should be drawn to appoint a guardian for the children and direct where the assets are to go.

"Wills don't impact joint accounts, life insurance or retirement accounts," says Aberasturi. "A goal of estate planning, though, is to try to have everything pass directly without the need for probating a will. This saves (survivors) a year without access to frozen assets, as well as 3 to 5 percent in fees."

If you die without a will, the procedure could be more complex, as state law will dictate how assets are distributed.

"If that person rented and had no savings, the impact is minimal," says Lewis. "However, if there are assets, it could be problematic. And it's so much more costly to retain a lawyer afterward."

And because estate planning is so individualized, Aberasturi advises consulting with a lawyer.

"If you don't do it correctly in the first place, it could be too late (when you find out)," he says.

Aberasturi says he's had clients bring in revocable trusts prepared at a seminar.

"What they did won't protect their assets," he says.

And waiting until that "what if?" occurs won't protect assets, either.

The goal is to plan five years before you get sick, says Aberasturi.

Generally speaking, the institutionalized person can have $13,800 in assets and the spouse around $100,000, plus the home, and still be eligible for Medicaid assistance with nursing home or rehabilitation costs.

"Gay couples are at a disadvantage, though, because Medicaid won't accept the partner as a spouse," he says.

Still, making gifts, setting up trusts, transferring titles to real estate — while following state and federal guidelines — are all part of the planning process.

"Because circumstances change, it's important to have a financial checkup every few years," he says.