Uniform Probate Code - Advance Directives


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Boston Medicare and Medicaid Attorneys Cohen & Oalican discuss the impact of the Uniform Probate code as it impacts Advanced Directives.


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Uniform Probate Code - Advance Directives

  1. 1. THE UNIFORM PROBATE CODE IN COURT – Advance Directives Pt. 3 of a Series Specific Interpretation for Massachusetts Elder Law Steven M. Cohen, Esq. Cohen & Oalican, LLP 18 Tremont Street - Suite 903 Boston, MA 02108 (617) 263-1035
  2. 2. ADVANCED DIRECTIVES <ul><li>There are simple steps that clients can take while they are healthy to ensure that their wishes regarding their finances and health care decisions are respected in the event that they become incapacitated by illness. </li></ul>
  3. 3. ADVANCED DIRECTIVES - Power of Attorney <ul><li>In 1990, the Massachusetts legislature enacted the Uniform Durable Power of Attorney Act, enabling Massachusetts' citizens to execute a court recognized durable power of attorney. </li></ul><ul><li>Since then, 27 other states, including the District of Columbia and the U.S. Virgin Islands have adopted durable power of attorney statutes based on the Uniform Act. </li></ul><ul><li>A power of attorney is a document that allows a client to appoint an individual to act as the client's agent (&quot;attorney-in-fact&quot;) on financial matters should the client ever become incapacitated. </li></ul><ul><li>Given the broad authority typically granted under a power of attorney, it is obviously important that the client be confident that the agent will act in accordance with the client's wishes. </li></ul>
  4. 4. ADVANCED DIRECTIVES - Power of Attorney <ul><li>There are few formalities to creating a power of attorney. </li></ul><ul><li>However, it makes sense to have the power of attorney notarized so that it can be used to transfer real estate if necessary. </li></ul><ul><li>Also, as some States require that the power of attorney be witnessed, it makes sense to have witnesses so that the document would be honored in other States. </li></ul>
  5. 5. ADVANCED DIRECTIVES - Power of Attorney <ul><li>If a client wants to appoint more than one person the client can require that they must act together or permit them to act separately. </li></ul><ul><li>If you want the agents to be able to act separately, the form must state this explicitly. </li></ul><ul><li>However, clients should at least appoint alternates to avoid the problem of the attorney-in-fact not being available. </li></ul><ul><li>In deciding who to appoint the client should obviously consider whether the person is trustworthy. </li></ul><ul><li>Although, the person does not need to be a financial expert, it makes sense to appoint an agent who has some experience with financial matters and who has the common sense to hire professionals when necessary. </li></ul><ul><li>Finally, be careful not to appoint anyone who has a history of financial problems. </li></ul><ul><li>The pressures of debt or other financial strain may cause even the most trustworthy person to use the client’s funds for their own needs. </li></ul>
  6. 6. ADVANCED DIRECTIVES - Power of Attorney <ul><li>It is important to be sure that a client's power of attorney is &quot;durable,&quot; meaning it remains in effect should a client become incapacitated. M.G.L. c.201B §1(a). </li></ul><ul><li>To create a durable power of attorney the document must contain specific language referencing that the client's future disability will not effect the power of attorney. </li></ul><ul><li>M.G.L. c. 201B §1(a). A client should also consider including gift-giving powers which would allow the client's attorney-in-fact to take advantage of estate planning strategies. </li></ul><ul><li>Without specific language regarding gifting, future gifts made by the attorney-in-fact may be disallowed. </li></ul>
  7. 7. ADVANCED DIRECTIVES - Power of Attorney <ul><li>Most powers of attorney take effect when executed, even though the usual intent is for them to be used only in the event of the incapacity of the grantor. </li></ul><ul><li>A client has the option of executing a &quot;springing&quot; power of attorney that will only become effective when the client's physician signs it stating that in his or her opinion the client has become incapacitated. </li></ul><ul><li>However, our office has found that banks and other financial institutions don’t like springing powers of attorney as they raise questions of whether the client is really incapacitated. </li></ul><ul><li>Or a client can enter into an escrow agreement with the lawyer who drafted the document under which they will hold the power of attorney until the client's physician tells the lawyer the client has become incapacitated. Clients always retain the option of directing their lawyer to release the power of attorney. </li></ul>
  8. 8. ADVANCED DIRECTIVES - Power of Attorney <ul><li>A client can revoke a power of attorney at any time. </li></ul><ul><li>All the client needs to do is send a letter to the attorney-in-fact informing them that their appointment has been revoked. </li></ul><ul><li>The client should also write any financial institution where the power of attorney might be used, putting them on notice that the document has been revoked. </li></ul><ul><li>A conservator or guardian can also revoke a power of attorney, but the appointment of a conservator or guardian does not automatically revoke a power of attorney. </li></ul><ul><li>In fact, in Guardianship of James A. Smith, 684 N.E. 2d 613 (1997), the court held that a principal's nomination of his future guardian through a durable power of attorney mandates that the court appoint such nominated guardian in the absence of good cause or disqualification </li></ul>
  9. 9. ADVANCED DIRECTIVES - Power of Attorney <ul><li>The attorney-in-fact owes a fiduciary duty to the person who appoints them. </li></ul><ul><li>M.G.L. c.201B §3(a). According to the Uniform Probate Code a fiduciary duty consists of a legal duty to: </li></ul><ul><ul><li>account; </li></ul></ul><ul><ul><li>segregate assets; </li></ul></ul><ul><ul><li>make trust assets productive in accordance with a reasonably, </li></ul></ul><ul><ul><li>prudent person dealing with other people's money; </li></ul></ul><ul><ul><li>not delegate the responsibility to someone else; </li></ul></ul><ul><ul><li>and not to self deal. </li></ul></ul><ul><li>U.P.C. §5-202. It is very important that the attorney-in-fact keeps good records of his or her actions under the power of attorney. </li></ul><ul><li>Finally, the attorney-in-fact does not have any responsibility to use their own personal funds to pay bills of their principal. </li></ul><ul><li>However, it is important that whenever the attorney-in-fact signs their name, they always clarify that they are doing so in their capacity as agent rather than individually. </li></ul>
  10. 10. ADVANCED DIRECTIVES - Health Care Proxy/Living Will <ul><li>A health care proxy is a document by which a client (the principal) may give another person (the agent) the authority to make health care decisions should the principal become incapacitated. </li></ul><ul><li>In contrast to the proxy, a living will is a client's written statement as to specific treatments the client would or would not want initialed. </li></ul><ul><li>M.G.L. c.201D §2. On December 18, 1990, in response to the U.S. Supreme Court decision of Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990), Massachusetts passed the Health Care Proxy statute providing that &quot;[e]very competent adult shall have a right to appoint a health care agent by executing a health care proxy.&quot; </li></ul><ul><li>M.G.L. c.201D, §2. In the Cruzan decision, the U.S. Supreme Court respected the intentions of Nancy Cruzan who prior to an accident that left her in a vegetative state, had written her specific intention not to be kept alive by artificial feeding. </li></ul><ul><li>Some form of living will or health care proxy statute exists in nearly every state, including the District of Columbia </li></ul>
  11. 11. ADVANCED DIRECTIVES - Health Care Proxy/Living Will <ul><li>Health care proxies are vitally important when a patient is incapable of giving instructions to medical professionals, especially if the patient is being kept alive by life support systems that is not consistent with the patient's values. </li></ul><ul><li>The proxy will permit the agent to order the withdrawal of such life support. </li></ul><ul><li>A proxy is also important if there should be a disagreement among family members since it appoints one individual to represent the patient. </li></ul><ul><li>Alternates should be named in the event the first person appointed cannot serve for any reason. </li></ul><ul><li>To avoid potential conflicts of interest, no operator, administrator, or employee of a facility that is providing care for the principal may serve as a health care agent, unless he or she is related to the principal by blood, marriage, or adoption. </li></ul><ul><li>M.G.L. c.201D §3. </li></ul>
  12. 12. ADVANCED DIRECTIVES - Health Care Proxy/Living Will <ul><li>It is best that the health care proxy also include a medical directive giving the principal's agent guidance on what the principal wishes would be done in a given situation. </li></ul><ul><li>More capacity is required to give medical directives than is required simply to delegate decision-making authority. </li></ul><ul><li>These medical directives enable a principal to ensure that his or her own wishes regarding treatment decisions are respected. </li></ul><ul><li>If the principal's family ever has to make these difficultdecisions, their burden will be eased by the expression of a principal's wishes provided by a directive. </li></ul>
  13. 13. ADVANCED DIRECTIVES - Health Care Proxy/Living Will <ul><li>According to M.G.L. c.201D §2, health care proxies must be in writing and signed by a legally competent adult. </li></ul><ul><li>Two witnesses must be present to attest that the principal appeared to be at least 18 years old, of sound mind, and under no undue influence. </li></ul><ul><li>Unlike a typical power of attorney which is immediately effective, a health care agent is only authorized to make decisions when an attending physician has certified in the medical record that the principal can no longer give their informed consent. </li></ul>
  14. 14. ADVANCED DIRECTIVES - Health Care Proxy/Living Will <ul><li>In order to ensure that the principal's wishes are respected regarding health care decisions, it is important that they have a candid conversation with their agent to make sure their values are understood. </li></ul><ul><li>In addition, copies of the health care proxy should be kept with the principal's personal records and a physician should have one filed with the patient's medical records. </li></ul>
  15. 15. ADVANCED DIRECTIVES - Health Care Proxy/Living Will <ul><li>The role of the health care proxy continues to be clarified. </li></ul><ul><li>Specifically, since Rogers v. Commissioner of the Department of Mental Health, the use of health care proxies has become controversial in the administration of antipsychotic medication. </li></ul><ul><li>The Rogers court ruled that if a patient is not capable of giving their informed consent, health care professionals cannot administer antipsychotic medication without first obtaining court authority to do so. </li></ul><ul><li>This rules applies even if the patient was accepting the medication. </li></ul>
  16. 16. ADVANCED DIRECTIVES - Health Care Proxy/Living Will <ul><li>This case also implies that a health care agent has authority to assent to any medical treatment for his or her principal, including treatment with antipsychotic medication. </li></ul><ul><li>However, if the principal is objecting to the treatment, this is taken as a revocation of the proxy regarding that treatment. </li></ul><ul><li>In that event, the agent would have to obtain court authority. </li></ul><ul><li>In addition, according to a letter from the Office of the Attorney General, a health care agent may consent on behalf of an incompetent patient to the administration of antipsychotic medication without a Rogers hearing. </li></ul><ul><li>If, however, a patient refuses or objects to the administration of antipsychotic medicine, a court-issued judgment is required, regardless of the existence of a health care proxy. </li></ul>
  17. 17. ADVANCED DIRECTIVES - Health Care Proxy/Living Will <ul><li>In 2009 the Uniform Probate Code clarified that decisions made by a health care agent take precedence over those made by a guardian. </li></ul><ul><li>In addition, a guardian cannot revoke a health care proxy without obtaining court authority. </li></ul><ul><li>Problems sometimes arise if a patient has a health care proxy in place, is incapacitated and is disagreeing with decisions made by their agent. </li></ul><ul><li>As stated above, the patients refusing treatment can be taken as a limited revocation of the proxy, at least as it pertains to that particular situation. </li></ul><ul><li>As an alternative to commencing a guardianship proceeding, an agent under a health care proxy can file in probate court a petition to affirm that the health care proxy is valid and that the patient is too incapacitated to make medical decisions </li></ul>
  18. 18. ADVANCED DIRECTIVES - Health Care Proxy/Living Will <ul><li>Health care proxies and living wills are often confused. </li></ul><ul><li>As stated above, the health care proxy appoints a person to make medical decisions on their behalf. </li></ul><ul><li>A living will on the other hand, expresses an individual’s wishes regarding specific treatment decisions. </li></ul><ul><li>The health care proxy is the more important of the two documents. </li></ul><ul><li>Living wills may be helpful to determine the client’s wishes but they are not legally enforceable by themselves. </li></ul><ul><li>Clients should avoid living wills which attempt to create an exhaustive list of medical scenarios reflecting their wishes on all treatment situations. </li></ul><ul><li>If the client lists one hundred situations, the agent may face a situation that is not listed. </li></ul>
  19. 19. ADVANCED DIRECTIVES - Health Care Proxy/Living Will <ul><li>In that event, the health care provider may be left with the impression that since the patient did not specifically list the treatment that may not have wanted to give their agent authority to make that decision. On the other hand, it is important for clients to clarify their wishes regarding treatment decisions. </li></ul><ul><li>The healthcare proxy can be drafted to include “medical directive” language. </li></ul><ul><li>A medical directive describes in broad general language what the clients wishes are regarding treatment. </li></ul><ul><li>Because the directive is general rather than specific, the health care agent can apply it to any situation they face. </li></ul>
  20. 20. THE UNIFORM PROBATE CODE Steven M. Cohen, Esq. Cohen & Oalican, LLP 18 Tremont Street - Suite 903 Boston, MA 02108 (617) 263-1035