Simply Money: The Importance of Living Wills

May 12, 2022

It’s not a fun topic to discuss, but a living will and medical power of attorney can give the people you love the ability to make decisions for you that are in your best interest.

In this episode of “Simply Money,” Mark Reckman discusses the legal and personal challenges of an incapacitating illness or accident.

Episode Transcription

Amy Wagner:

You’re listening to Simply Money. I’m Amy Wagner, along with Steve Sprovach. The pandemic has taught us many, many lessons. One of them, the importance of having a power of attorney and a living will. Joining us tonight to explain what those are, and really get into depth here about what you need to be thinking through, is our estate planning expert from the law firm of Wood and Lamping, Mark Reckman.

Amy Wagner:

Mark, let’s talk through this from just the pandemic perspective. Because I think this just … getting sick out of the blue and then being put on a ventilator so quickly. That’s a reality that families dealt with. Many of them did not have the paperwork, in effect, that would help their families to make decisions.

Mark Reckman:

Well, and this is the takeaway that I wanted to focus on today. Because it is very clear to anybody who’s been through this, that you need to have someone in the family, someone you trust who can help you with medical decisions, can help you with legal decisions if you come down with some kind of a disabling illness. COVID was just one on the list of many things that can happen to you.

Amy Wagner:

Let’s talk through though, because there’s a living will, there’s a power of attorney, there’s multiple kinds of powers of attorney. We’re talking about a medical one in this case. But let’s talk through what these are, and essentially how your family can use those as tools.

Mark Reckman:

Well, the word attorney roughly translates to mean agent. So a power of attorney is a document that you sign in which you name an agent. And this agent has the authority to act on your behalf. And in Ohio and Kentucky, here in the tri-state … and Indiana. The two most common powers of attorney are financial and medical. Now, the financial power of attorney is a document that appoint an agent to manage your assets and your legal affairs. This would commonly include paying bills, filing taxes, managing investments, selling property, exercising your legal rights. Now this kind of power of can be broad, or it can be limited, that’s up to your choice. But it needs to include all the kinds of things that are going to have to be taken care of if you end up in the ICU for a month.

Amy Wagner:

Yes, absolutely. And I mean, there’s all different kinds of very practical reasons. I think it was you, Mark, whose son went hiking for some time, right?

Mark Reckman:

That’s right.

Amy Wagner:

If a bill popped up or something along those lines, it needed to be paid. And so you were taking on that financial power of attorney while he was out and didn’t have the ability to pay those bills. But we’re talking about a more long term, scary hospital stay situation. What goes into play here?

Mark Reckman:

Well, you’re right. There are many circumstances that are not related to disability or illness, like being out of the country on business for months at a time, or in the case of my sons who hiked the Appalachian Trail, they were on the trail for four and a half months. And yeah, I paid their bills and managed their investments, what little there were. But there were still bills that had to be paid, and I took care of that for them. I was glad to do it. It was easy to do.

Mark Reckman:

But you’re right. If there’s an illness issue, it adds another wrinkle. And this is why the medical power of attorney is just as important as the financial. So a medical power of attorney authorizes your doctor and your hospital to talk to your agent. And that’s because federal law prohibits your doctor from discussing your condition with anybody. Amy, that includes your spouse. For you years and years, for decades, those of us who are older were used to the time when doctors would talk freely about their patients to their husbands and wives. Those days are gone. That’s illegal. And it is serious stuff.

Amy Wagner:

Well, and really, they would talk to anyone, right? If you had a family, people in the waiting room, and a bunch of people, they would just talk openly there. But because of HIPAA and how that’s all taken place, it’s really important that they know exactly who you have approved them to talk to.

Mark Reckman:

Absolutely right. And so you need a piece of paper that says I’m allowed to talk to my wife’s doctor about my wife’s condition. That he’s … or the doctor, I mean. He or she is allowed to talk to me. Now, there’s also in that medical power of attorney, there’s authority for me to make medical decisions for my wife. So that not only do I talk to her doctor, but then I can also sign informed consent. In other words, consent for surgery, consent for treatment, for rehab, entry into a hospital, admission to the hospital, admission to a nursing home. So there’s a lot of paperwork that has to go with medical decisions.

Amy Wagner:

You’re listening to Simply Money tonight here on 55KRC. We’re joined by our estate planning expert, Mark Reckman, talking through why you want a power of attorney, why you want a living will. COVID taught us a lot of lessons. One of them being the importance of having these documents to help your family members if you are incapacitated. Let’s talk through the living will part of this, Mark.

Mark Reckman:

So a living will is generally signed together with a medical power of attorney. The term living will, it’s a terrible term. It is nothing to do with living, it’s about dying. And it does not dispose of your property like a last will and testament. I don’t like that name. A living will really is a set of instructions. It’s an advanced directive, and it tells your doctor what limitations, if any, that you would place on your treatment if you become terminally ill. For example, my living will says that if I’m terminally ill and nothing can save me, and a second to doctor confirms my condition, then my living will says, no respirator, no feeding tube, no paddles to the heart. Just keep me as comfortable as possible and let me go.

Mark Reckman:

And then my medical power of attorney says that my wife has authority to make all the other decisions, the non-terminal stuff. So living wills are very specific, they deal with the final life decisions. Medical powers of attorney are very broad and deal with all medical issues. They work as a pair.

Amy Wagner:

One point, I think though, that’s worth getting into here, as you mentioned, your specific living will and how it’s if you’re in a terminal state. But we’re talking about this in the context too, of COVID. And I know lots of people who were fine, and then all of a sudden they were sick. And then all of a sudden they were in the hospital. Then they were an ICU. Then they were on a ventilator. And some of those living wills will say, hey, no ventilator. So how does that all play into this?

Mark Reckman:

Great question. And I have a family member up east who came down with COVID very early. This was back in March of 2020. And I had a family member who got COVID, got very sick. She went from the doctor’s office to the emergency room to the ICU, all in a matter of hours. And Amy, she was out of it. She was nearly unconscious. Now fortunately, she had both a living will and a medical power of attorney, and they named her husband as her agent. And her living will said that if she was terminally ill, she did not want heroic measures taken. No feeding tube, no respirator.

Mark Reckman:

Well, the doctors needed a decision as soon as she was in the ICU, they wanted to know, do they put her on a ventilator? Well, that sounds like a tough choice, but the choice is actually quite clear. Ohio and Kentucky and Indiana … are the same here as her state up east. And these states say that terminal condition is an incurable, irreversible, untreatable condition, and that death must be inevitable. COVID is none of those things. It is curable. Most people do recover from it. It is treatable. And so her living will didn’t apply at all.

Mark Reckman:

However, her medical power attorney did apply. And that allowed her husband to authorize the hospital to put her on a ventilator. It was nip and tuck for 10 days … 10, 11 days she was on that respirator, very sick. But she made it through. She then went to a rehab hospital for a couple to three weeks. She was home by late April. And she’s doing well today.

Amy Wagner:

Wow. I think that’s really a powerful example of how all these pieces work together to really do the best that they can to protect you and to provide answers when you can’t speak for yourself.

Mark Reckman:

Well, that’s right. And the system works pretty well, but we each have to do our own part by putting the paperwork in place now. It’s easy. It’s cheap. It’s painless.

Amy Wagner:

Mark, what percentage of people, do you know, have these pieces in place, of power of attorney and living will?

Mark Reckman:

I don’t know any numbers, but what I can tell you is that, for example, when 9/11 happened in New York back in 2001, the first responders, the fire, the EMTs, the police who all responded to the scene, as you may recall, many of them died. And of those people who died, the vast majority, meaning over 80% of them, did not have even a will in place, much less a living will or a power of attorney for healthcare. That doesn’t really answer your question, but my point is there are a significant number of people who don’t have these things done. And how we manage their decisions and their financial affairs is … it’s a black hole. It’s tough.

Mark Reckman:

There are solutions. They’re such things as guardianships. Guardianships are slow, they’re cumbersome, they’re bureaucratic. They do work. There’s nothing wrong with them in that sense, but they’re not highly responsive and they’re not very flexible.

Amy Wagner:

Great insights tonight from Mark Reckman, our estate planning expert from the law firm of Wood and Lamping. Making these decisions, taking the steps to have these documents in place. Never a fun thing. None of us like to think about the end of our life, yet it is ultimately a gift of love for the people who you care about. You’re listening to Simply Money here on 55KRC, The Talk Station.

About the Author

Mark S. Reckman

Mark S. Reckman

Mark Reckman has been with Wood + Lamping since 1979

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