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JOHN BROWN: Having someone make decisions when you can’t

John Brown
John Brown - Contributed

Lately I find that I’ve been doing a lot more work for people aged 60 and up. That may coincide with an upturn in people seeking advice about their last will and testament.

I’ve written about wills previously, but what I’d like to talk about now are two other documents that are equally important in my view and they are the enduring power of attorney and the advanced health care directive.

With the enduring power of attorney, you have an appointment to be made to somebody else in writing, that if you begin to lose your mental faculties to the point we can no longer make decisions for yourself, that that attorney will step in and make those decisions for you.

Very often it is your spouse and if they can’t do it, it is often a younger family member. Let’s face it — somebody has to be allowed to look after your affairs if you’re in a situation where you can’t look after them yourself anymore. And when I deal with the clientele base which is around my own age group or older that happens more and more frequently.

Generally, if in the opinion of your family doctor you can no longer comprehend things such as the time of day, who you are, recent occurrences, reality etc., and then the power of attorney should be invoked. It is important to remind people who are signing away their potential rights to a third party, that the attorney has no power unless or until your mental state has been affected in that way. On the flip side if and when that same incapacitated person regains their mental acuity then the power of attorney automatically disappears.

An advanced health care directive is equally important. Once again it is a clearly written instruction from the person with a health care directive is written for, to a trusted third-party to make difficult, sometimes final decisions, about how a person’s health care is to be managed by a particular hospital and/or by its physicians and nurses and other hospital staff. Your spouse is an obvious choice to fill this capacity again and once more if the spouse cannot fulfil this duty it is to be passed on to a close family member or a trusted friend.

An advanced health care directive will likely make it much easier for your aggrieved and unhappy family and friends to make these vital decisions about you with the least acrimony and unpleasantness that is possible. A common example of the instructions in such an agreement have to do with what physicians call heroic measures. That is when the medical staff will do everything within their ability to see that the life of the patient is preserved and that death does not occur.

Unfortunately, a common problem that follows such measures can include that the patient is now existing at a much lower level, or lower biological state, then they would have if their own desires as to the taking of such measures had been known. Therefore, when the family and friends are huddling in a hospital hallway wondering what to do with their suffering friend, the person empowered with this directive can have the final authority to step forward and make a decision that everyone else can agree reflects the wishes of the patient who is suffering.

I think clients should consider obtaining these two legal documents for the same reasons they would consider having their last will and testament written up. They provide a holistic approach to dealing with the issues that people face at or near the end of life, and they can make life easier for the clients themselves, as they decline in the latter portion of their lives.

For these reasons, I have been recommending to clients that they get all three documents done at the same time. Even when all three are done at once, the cost is still small, especially when compared to the benefits that can be reaped by the clients/patients.

John Brown is a lawyer based in Bay Roberts. He can be reached by email at jb@johnbrownlaw.ca.

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