How to Resolve a Conflict between a Healthcare Directive and a Power of Attorney

Does California Probate code make any allowances for differences or conflicts between an Advanced Healthcare Directive (California's version of a Healthcare POA) and Power of Attorney?

For example, a parent designates one child as their agent for the Healthcare Directive, and the other child as their agent for the Power of Attorney. The parent becomes incapacitated, and both children must step up to manage both the healthcare and finances of their parent. The child in charge of healthcare must place the elderly parent in a long term care facility, and needs funds from their parent's estate to do so. However, the child with the Financial Power of Attorney refuses to release any funds for a long term care facility.

Let's add a layer of complication that many children of parents with dementia in the SF East Bay must face. This is the question of Medi-Cal and long term care. In our example, above, the child with the financial power of attorney is refusing to release funds for care because they are aware that there are rules and regulations regarding qualifying for Medi-Cal's long term care coverage that may be violated if they begin paying for care prior to applying for Medi-Cal. The child with the Healthcare Directive suspects they may be correct, but is too confused by the Medi-Cal system, and does not want to spend money to consult an attorney. The siblings, already under immense stress because of their parent's failing health, find themselves at an impasse. What are their options?

When a Financial Power of Attorney and Medical Power of Attorney (or Advance Healthcare Directive in CA) have different agents who cannot agree, or have stipulations that conflict with each other, there are several ways the situation can be resolved. The first is perhaps the most simple, but I have seen it overlooked in my years as an Elder Law attorney in Contra Costa County.

1. Read the Documents with a Fine Tooth Comb: Does one or both of the documents contain a clause or section that accounts for the difference or conflict in question. If the documents were drafted by an experienced Estate Planning Attorney in the SF East Bay, there should not be any conflicts that are not resolved between the Power of Attorney and Healthcare Directive. 

2. Try to work it out: When emotions and stress levels are high, conflicts arise. Much conflict is born out of misunderstandings and lack of communication. Try to sit down in a neutral or public environment and talk it out. Bring a list of concerns, and try not to leave the conversation without a plan for the next step in place. 

2.  Consult an Elder Law Attorney: An elder law attorney who works in the county where the parent resides is best equipped to help you with your case. For example, I work with Elder Law clients in Contra Costa County and Alameda County. As an Elder Law attorney centered in Walnut Creek, I understand the procedures of both these courts and am well positioned to resolve issues quickly with minimal cost. If there is a Medi-Cal issue, as in the example above, look for an Elder Law attorney who specializes in both Probate Litigation and Medi-Cal matters.

3. Consider Mediation An Elder Law attorney can represent you in mediating the matter and coming to a swift resolution. While this can be costly, a good attorney can recommend a skilled mediator who can help you resolve the situation and avoid the much higher costs of going to court. 

4. Choose Probate Court Last Having a judge resolve your issue for you is often the worst situation you can find yourself in. In most elder law cases I deal with in the SF East Bay, there is often not one obviously wrong party (legally speaking). The cost of resolving your Power of Attorney and Health Care Directive issue in the Probate Court of Contra Costa or Alameda County is guaranteed to be expensive and exhausting. Often, the end result is either worse or the same for both parties as mediation, at 3-4 times the cost. A responsible and ethical Elder Law attorney will almost always recommend mediation.

I offer a free consultation from Elder Law and Trust and Estate Law Firm in downtown Walnut Creek. For questions about a Power of Attorney or Healthcare Directive, or other probate issues, call 925-322-1763

 

The Importance of the Advance Health Care Directive and the Power of Attorney

"Ending Life," a piece by 60 minutes that aired on July 19th, highlights the importance of having an advance health care directive and power of attorney. The piece detailed the criminal case of Barbara Mancini, who was arrested for allegedly aiding her father's suicide. Her actions were simple: she handed her dying father a bottle of morphine, nothing more. Four days later he died in the hospital, sparking an End of Life Debate that has gotten considerable press. As an Estate Planning attorney, the story reiterated for me just how important it is to have detailed legal documents such as an Advance Health Care Directive and Power of Attorney. While such forms cannot always prevent complications, they can certainly provide insurance against it. While lawyers are no doubt familiar with what these documents are, most of us are not. So, what exactly are they, and how can they help us when we're older?

Advance Health Care Directive

Under Federal Law, we all have the legal right to give specific instructions regarding our own health care. The Advance Health Care Directive, also called a living will, is the legal document that specifies your wishes, should you become unable to make decisions or become incapacitated. Because of the sophistication of medicine and medical technology that exists today, having a document that specifies how you wish to live or be cared for, has become essential. The expense, pain, and burden which our life prolonging technology affords us is something many of us may not wish to endure. Or, alternately, may wish to take advantage of.

The "Power of Attorney" typically goes hand in hand with the Advance Health Care Directive. 

Power of Attorney

In addition to having the right to specify our own health care wishes, by law we have the right to name another person to make health care decisions for us. A Power of Attorney outlines not only who you wish to make decisions for you, but how and when you wish them to do so.

Do you need the help of an Attorney?

While you can fill out a legally valid Health Care Directive form provided by the state, most people will benefit by having an Advance Health Care Directive crafted by an experienced Estate Planning attorney. The benefit of working with an attorney comes down to foresight and specificity. For example, the form provided by California has two options to choose from:

"I do not want my life to be prolonged if the likely risks and burdens of treatment would outweigh the expected benefits, or if I become unconscious and, to a realistic degree of medical certainty, I will not regain consciousness, or if I have an incurable and irreversible condition that will result in my death in a relatively short time. "

                                                                            OR

"I want my life to be prolonged as long as possible within the limits of generally accepted medical treatment standards."

When you consider these two options, you will realize they are not very specific. An experienced Estate Planning lawyer can help you craft your directive in a way that not only guards against potential complication (or unnecessary pain for that matter), but honors your wishes and values. The Advance Health Care Directive is a standard part of any well designed Estate Plan, and has no additional cost associated with it. 

The same goes for your Power of Attorney. Yes, you can print out a form and fill it out yourself. However, taking advantage of an attorney's expertise helps to insure against future unforeseen problems. For example, a particularly important part of the document is called the "Agent's Authority." On the form provided by the state of California, the following choices are offered:

My agent is authorized to 1) make all health care decisions for me, including decisions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care to keep me alive, 2) to choose a particular physician or health care facility, and 3) to receive or consent to the release of medical information and records.

At a basic level, an attorney can make sure your AHD (advance health care directive) and POA (Power of Attorney) do not conflict with one another. They can also help you to provide more specificity. As you may notice, the above statement gives the person with Power of Attorney free reign. A good estate attorney will help you craft a Power of Attorney that takes into consideration the dynamics of your particular situation and to foresee any potential complications. The Power of Attorney is also a standard part of any well designed Estate Plan, and is included at no additional cost.

To complete your Estate Plan, or update a previous Estate Plan in California, contact my law office at 925-322-1763. I offer a free consultation and specialize in Estate Planning in Contra Costa County and Alameda County.

http://www.cbsnews.com/news/ending-life-barbara-mancini-end-of-life-debate-2/