I am dictating this while sitting in the hospital visiting my neighbor. His wife, “Sue”, is in a room dying. These are sad and difficult times. We all have been through it or will experience it at some point in our lives.
One is never really prepared for these events. However, in this case, Sue thought ahead and executed an advanced healthcare directive. She also gave her husband a power of attorney. She has not responded to stimuli for the last several days. Armed with the healthcare directive, “Sam” was able to know and understand Sue’s wishes and to follow them in regards to her medical treatment. It was a blessing for him to have those directions. I sat with him while he met with the doctors and discussed the care necessary for Sue.
Effective January 1, 2012, Alabama has a new statute regarding powers of attorney, advanced care directives and appointment of healthcare proxies. The legislature has codified forms that are considered acceptable to be used in each of these circumstances. For an example, no longer will a power of attorney be used to direct healthcare. It has a lot of language directed toward financial transactions. I also recommend to my clients to include a clause that does not allow the agent to enter into arbitration agreements that affect health and safety*. The Seventh Amendment should not be abrogated because you fill out a form. The healthcare directive form has been simplified and is quite easy to follow. Those of you that have powers of attorney or healthcare directives that were in effect before January 2012 can still use those. However, it is recommended that you update those powers of attorney and healthcare directives to conform to the new law.
Taking these simple steps, as well as writing wills, will help you make it through difficult times. It will also give the person who has signed those documents some peace of mind knowing that their wishes are being followed in regards to their care.
* Although I have given my attorney-in-fact this general and durable power of attorney, I specifically withhold from my attorney-in-fact the power to agree or consent to binding arbitration, or to agree to any other process that would preclude the right to have a jury decide any issue in controversy concerning my personal health and safety; this does not, however, preclude non-binding alternative dispute resolution processes such as mediation.
Civil litigation attorney Billy Cunningham practice concentrates on personal injury, wrongful death, nursing home abuse, business litigation, environmental law and insurance matters. He is licensed to practice in the state and federal courts of Alabama and Mississippi, as well as in the U.S. Court of Military Appeals, U.S. Court of Appeals for the Fifth Circuit and the Supreme Court of the United States.
One Comment
Gerry McGill
Excellent advice. Over the years I have spoken to several church groups on the need for wills and other advance planning. Some people were uncomfortable with the topic so I would conclude with something I was told a long time ago: The only guarantee that I can give you about advance planning is that it won't make you live any longer or die any sooner. But it will sure make it easier on those you leave behind.
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