Iowa Estate Planning – Power of Attorney & Advance Directives

Healthcare Power of Attorney
A healthcare power of attorney is a written instrument which designates someone, or more than one person, to make medical decisions for you if you cannot.  This does not apply to emergency situations where healthcare providers will take whatever steps to save your life and stabilize you.  However, if you are unable to communicate with your physician, your attorney-in-fact is authorized to communicate with your healthcare providers and make decisions regarding what type of medical treatment you receive, who provides that medical treatment, and where that medical treatment is delivered.  (For example, which doctor, which hospital, and which form of treatment.)  Contrary to popular belief, this power and authorization is more than just dealing with the “end of life” decision.

Financial Power of Attorney
A general power of attorney is a written instrument which designates someone to handle your financial decisions on your behalf.  This power can be granted immediately, or it can “spring” into existence upon your incapacity.  It is possible to also limit what powers your attorney-in-fact possesses.  In the event you do not have a power of attorney and you are incapacitated, any financial decisions would need to be made by a court-appointed conservator.  At the court’s direction, the conservator would handle your financial assets.  A conservatorship is an expensive and time-consuming process, especially when compared to the simplicity of executing a power of attorney.  A common misperception is that your attorney-in-fact will be able to utilize this power after your death.  At your death, any power of the attorney-in-fact is automatically revoked and it will be necessary to switch management to the personal representative appointed in the probate process.

Living Will – Advance Directives
A living will, sometimes called a declaration relating to life-sustaining measures or advance directive, provides as follows:

“If I should have an incurable or irreversible condition that will result either in death within a relatively short period of time or a state of permanent unconsciousness from which, to a reasonable degree of medical certainty, there can be no recovery, it is my desire that my life not be prolonged by the administration of life-sustaining procedures.  If I am unable to participate in my health care decisions, I direct my attending physician to withhold or withdraw life-sustaining procedures that merely prolong the dying process and are not necessary to my comfort or freedom from pain.”

 

“Life-sustaining procedure” does not include the provision of nutrition or hydration except when required to be provided parenterally or through intubation or the administration of medication or performance of any medical procedure deemed necessary to provide comfort, care or to alleviate pain.

Technically, a living will is a direction to the physician of the patient’s wishes and should be carried out by the physician upon the determination that the patient fits in the parameters described.  However, in reality, the physician will often defer to family members and/or the attorney-in-fact for the actual determination.  For that reason, it is important that the individual verbally communicate their desires to those individuals during their life when they are capable so that their intentions are hopefully carried out.

Substitute Decision-Makers
If there is not a Living Will already in place, the Iowa Code sets forth a hierarchy of individuals who are capable of making decisions for an individual with a terminal condition and unable to communicate their wishes.  In all decisions, the decision shall be guided by the express or implied intentions of the patient.  In the following order, these individuals would be consulted with to determine the withholding or withdrawing of life-sustaining measures:

  1. The designed attorney in fact
  2. The guardian of the person of the patient if one has been appointed, provided court approval is obtained.
  3. The patient’s spouse.
  4. An adult child of the patient or, if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation.
  5. A parent of the patient, or parents if both are reasonably available.
  6. An adult sibling.

DNR (Do Not Resuscitate) or “No Code”
Hospitals and long term care facilities will automatically attempt CPR on an individual should their heart stop beating, unless there is a DNR order on file for that patient.  A DNR order can only be written by a doctor with permission of the patient, his or her family, or the guardian.  It is not the same as a Living Will and a Living Will is not the same as a DNR.  In order for a guardian to give this permission, the guardian will need to have court authority.