In addition to drafting a will or trust, it is also essential to plan for any time when you would be unable to make decisions for yourself. This can be done through either documenting your wishes in advance or to delegate your decision-making to another trusted individual. The primary instruments used today to accomplish these matters are Powers of Attorney and Advance Medical Directives, as each are the efficient and inexpensive.
These and other related types of documents are discussed below chronologically by date of creation to show the development towards today’s practices.
- Power of Attorney — These create a power given by a “principal” to an “agent” or “attorney in fact” to act on behalf of the principal. A General Power of Attorney allows the agent to act for the principal in all affairs. A Limited Power of Attorney only allows the agent to do specified duties. Both types have been used for not only for estate planning purposes, but have also been used in business relations for thousands of years (see this site from Fordham University).
- Durable Power of Attorney – One traditional weakness with powers of attorney was that they become ineffective upon the principal’s incapacity. The durable power was created to extend the agent’s powers to continue his duties into this time. States law began to allow them starting in the 1950s and 1960s.
- Living Will – This document is prepared so that the principal could leave specific instructions and thereby let his desires be known well in advance. It enables the agent to instruct the physician to end medical treatment or life support when the principal reaches a “persistent vegetative state”. In both Maryland and Virginia, this is indicative of a “terminal illness” from which recovery is impossible. Living wills were introduced in the late 1960′s by Luis Kutner, one of the co-founders of Amnesty International.
- Healthcare Power of Attorney (aka Medical Power of Attorney, a Durable Power of Attorney for Healthcare, and Healthcare Proxy) — These give the agent the power to making broader healthcare decisions for the principal not limited to the strict period of time and directions covered in the living will. Additionally, they fostered the separation of medical and financial decision-making into separate documents in many states. State statutes supporting the Healthcare Power began to appear in the late 1970s.
- Advance Medical Directive – Most states, including Maryland and Virginia, now have statutes which allow the combination of the living will and medical powers of attorney into one “Advance Medical Directive” form. Living wills and medical powers of attorney previously created are generally still valid, but most attorneys now utilize some form of the combined document.
- Do Not Resuscitate Orders – The Virginia Code permits physicians to issue “Durable Do Not Resuscitate Orders” with the consent of the patient, but these are not to be construed as a medical directive. The Maryland Code instead indicates that “Do Not Resuscitate Orders” must be followed by emergency medical services personnel in accordance with established protocols.
As this is still a relatively new area of estate planning, changes and developments are still occurring (for example, see our earlier discussion regarding HIPAA). Keep watching here and across the news for further activity.