My husband is a registered nurse and came home with this story. A patient came into the hospital with cardiac problems and is now intubated. The question for the doctors and nurses now is, " Who is empowered to make medical decisions on behalf of the patient?" He was married but is now divorced. He has an adult son who he disinherited in his will. The person at the hospital with him is his neighbor who is the executor of his will and the sole beneficiary to his estate. Both the neighbor and the son are claiming to have that power. The hospital held an ethics conference but no decision was made on who should make the medical decisions for this patient.
After my husband was done with his story, the legal part of my brain whirred into action and my first question was, "Doesn't he have an advance health care directive?" The answer, of course, was, "No". Then I asked him, "Well, in the absence of an advance health care directive, who does the hospital look to for approval on medical decisions?" His response was, "Next of kin". Well, what does that mean?
Absent a proxy designation in an advance health care directive or power of attorney for medical reasons, the decision-making power falls on this list of people in the order written: spouse, children, parents, brothers and sisters, grandparents, aunts and uncles, then first cousins once removed. Our patient from above did not have a spouse, but he had a son. So, should the son be allowed to make medical decisions on behalf of his father? According to the list above, the answer is "yes". But once the particular circumstances of this case are examined, the answer isn't so crystal clear. The father disinherited his son and left his entire estate to his neighbor. Assuming that there are no undue influence issues, (and this is a big assumption to make because we do not know the circumstances of this case), it seems like the dad and son did not have much of a relationship. If that is the case, then the dad probably wouldn't want his son to be the one to make his medical decisions.
The patient/father probably thought he had done the right thing. He planned ahead and executed a will. But, as we can see, his minimal planning wasn't enough because although he planned for his death, there was no planning for the in-between time. We do not like thinking about life like this, but as this story shows, things happen and we should be prepared. Having a will is not enough. In addition to an estate plan, every adult should also have a durable power of attorney for financial decisions and an advance health care directive for those medical decisions. In that way, you will be protected all the way through to the end.
About the Law Office of Jan A. Meyer
The Law Office of Jan A. Meyer was founded in 2011 in Dana Point, California. It was established to provide clients with committed and compassionate estate planning services to assist with asset protection and strategic goals. Our law firm provides a personalized and cost-effective alternative to large law firms or self-guided online forms. At the Law Office of Jan A. Meyer, families and individuals are guided through a series of decisions to build a plan that ensures their financial and personal legacy are protected when they are no longer able to care for it. Learn more at www.danapointwills.com.
