Health Care Concerns: Durable Powers Of Attorney And The "Living Will"

By: Burt Levitch

Date: June 1995

As medical technology advances, many people are faced with lingering illness and the possibility of prolonged but incapaci­tated life.  There are many legal and financial ramifications to be considered.  In the event of incapacitating illness, you may wish to consider creating a durable power of attorney, which would designate a trusted friend or family member with the power to make critical decisions for you.

Many individuals have two durable powers of attorney that become effective in the event of medical incapacity, one for assets and one for health care decisions.  The asset power of attorney designates someone to gain access to bank accounts and to transact other business on behalf of a seriously-ill person. The health care power appoints someone to make medical decisions re­garding the nature and extent of health care treatment.

Recent publicity has focused on persons who have declined medical treatment that only would prolong an unsatisfactory life or the inevitable death.  Some health care powers of attorney can specify circumstances in which life should or should not be sustained, while others can assign the designated family member or friend the responsibility to make these judgments.

Another legal vehicle is the “living will,” a declaration which can explicitly state that no extraordinary measures should be taken in the final stages of a terminal illness.  This document enables the person named to follow your stated wishes, without guessing what choices you would have made for yourself.

If you have already created a durable power of attorney more than three years ago, please note that it is valid for only seven years. If your durable power of attorney was issued within the last three years, it is effective for your lifetime.

While facing the prospect of terminal illness is daunting, you do have options in determining what decisions or actions will be taken.  You are advised to give thoughtful attention to this most personal of decisions.

If you have questions regarding issues raised in this news­letter or about your estate plan, please call us at (310) 858-7700.

With over a decade of tax-related legal experience, Burt Levitch, head of our department, devotes his practice to estate planning and estate and trust administration. In addressing these issues, he helps clients consider the financial and emotional needs of family and friends while facing the constraints imposed by estate taxation and other applicable laws.

Our Trusts and Estates Department offers a wide range of estate planning and probate services geared to provide an orderly transfer of wealth from one generation to another. We prepare wills and trusts, deal with real property issues, and furnish sophisticated lifetime and postmortem tax planning. We also provide counsel to executors and trustees on the administration of estates and trusts, and we provide skilled representation in probate, trust and conservatorship proceedings and disputes.

Rosenfeld, Meyer & Susman was founded in 1957. The firm’s areas of expertise include: Trusts and Estates, Litigation, Taxation,  Entertainment, Corporate and Securities, Family Law, Labor and Employment Law, Insurance Coverage and Defense, Real Estate, Multimedia, Intellectual Property and Employee Benefits.

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