Early in my career and as I began specializing my practice in estate planning, I always found aspects of drafting and explaining health care powers of attorney and advance directives to be peculiar to my background. Using terminology such as “persistent vegetative state”, “advanced dementia” and “artificial hydration and nutrition” felt out of place in a law office. Additionally, evaluating a person’s mental capacity requisite to execute certain legal documents was daunting with no academic background in physiology. I had not taken so much as a basic biology course since my freshman year at North Carolina State University circa 2002/2003. Nevertheless, I understood the legal effect and implications of the documents and sought to keep the medical aspects simple, advising clients to consult with their medical professionals.
But through the years, out of necessity in some cases and simply to become a better all-around counselor for my clients, I have tried to understand the basics of the medical issues and end of life scenarios that concern and face my clients. I have acquired this knowledge through listening to clients regarding their firsthand experience, speaking to medical professionals including my two sisters, one a Nurse Practitioner and the other a Physician Assistant, and my own independent research.
At this point in my career, I am comfortable having a conversation with clients about dementia, Alzheimer’s, life sustaining procedures and the many other medical topics which impact estate planning. I am also comfortable making a professional judgment with respect to an elderly client’s capacity to execute a power of attorney or a last will and testament.
So, why is a basic understanding of these medical topics important in estate planning? Well, several reasons. First, a big part of estate planning is planning for incapacity which, by definition, involves someone’s mental and physical health. As estate planners, we plan for and confront situations where a person is incapable of effectively making and communicating their own financial and/or health care decisions. We do this with the use of powers of attorney and, when necessary, guardianship proceedings. Understanding the health situations where these tools may be needed is often as important as the legal effect and implications of the documents. Additionally, estate planners must evaluate the capacity of clients to ensure they have the requisite capacity required to execute a legal document. While the law presumes individuals to be competent and, for practitioners such as myself, the autonomy of clients with diminished capacity, to the extent possible and permitted, is valued, a lawyer must be knowledgeable of clear indicators that a client is incapacitated. Attorneys are ethically prohibited from allowing an incapacitated person to execute estate planning documents. Finally, estate planning involves clients who are often aging so issues such as long-term care, ailments, treatments, hospice and, ultimately, death often confront the attorney.
In sister blogs, I will address some of the more specific medical topics in estate planning such as estate planning health care documents versus medical orders and testamentary and contractual capacity.