Among the portfolio of estate planning documents that we help our clients assemble are a set that we call “Disability Documents.” These kinds of estate planning documents address not the certainty of the client’s death but the contingency of the client’s disability. The client appoints an agent or surrogate – a sort of deputy – under the Disability Documents to step in and help when the client is unable to help himself. (Disability Documents lose their authority when the client dies. Death is when the Last Will, the Revocable Trust, the Beneficiary Designation, an asset’s form of ownership, and so forth take over.)
In my practice, we generally use three separate kinds of Disability Documents: a Designation of Health Care Surrogate, a Living Will, and a Durable Power of Attorney. There are ways that the powers conferred by these documents can be combined into less than three documents, even into a single document. In most cases, however, I prefer to separate them according to the sorts of authority or powers that my client wishes to confer on the surrogate or agent.
The Designation of Health Care Surrogate is a document where the client names an agent – a surrogate – to make medical decisions for the client if the client is unable to make the decision because of an incapacity of some sort. The document also authorizes medical personnel to share information with the surrogate about the client’s medical situation so that the surrogate may make an informed decision on behalf of the client. I would like to address the Designation of Health Care Surrogate in this post by telling you the story of a family where that document came into play.
After the father of a client of mine died, my client’s mother, now a widow, was able to continue to live in the family home by herself. I had helped the widow settle her husband’s estate, and then we updated her own estate planning. In connection with the estate planning update, the mother signed the set of the “Disability Documents” that I mentioned, including the Designation of Health Care Surrogate. In that document, she delegated to her son, who lived with his family only a few blocks away, the authority to make medical decisions for her in case she was unable to make them herself.
One day she had such chest pain that she called 911 and then she called her son to tell him of the problem and where the EMT personnel would be taking her. He was at work, but went immediately to the ER. The son had a copy of the Designation of Health Care Surrogate. When he arrived, his mother was pretty well sedated, and the ER physician was glad to see him. The physician immediately started interrogating the son on the medications that his mother was taking. The son did not have the slightest idea what his mother’s meds were. Instead, both the doctor and the son went through the mother’s purse looking for clues. The son later told me that his embarrassment was the least of the problems right then. The problem was the proper treatment of his mother.
Thus we tell a client who names an agent or surrogate in a Designation of Health Care Surrogate that the client must do the following: (1) inform the surrogate of his nomination and give the surrogate a copy of the Designation, (2) send a copy of the Designation to all the client’s physicians, and (3) compile and give to the surrogate all of the client’s pertinent medical information, including contact information for the client’s physicians, a summary of the client’s medical history, and a list of all of the medications that the client is taking. Our widow had done the first of these three things, but not the second and not the third (despite my telling her to do all three).
Our country has adopted a national policy that a database of medical information shall be assembled on which one’s history is to be maintained. But we are still very, very far from that objective. Thus, a Designation of Health Care Surrogate can be a useless tool in the face of a medical crisis and an ignorant surrogate. Signing the Designation, then, is only half the job; the other half is providing to the surrogate the information that he or she will need in an emergency.
You need to know Mom’s meds.