WHY ESTATE PLANNING ISN'T JUST FOR THE ELDERLY
Picture this: something goes horribly wrong on what was a very normal Tuesday afternoon. Your spouse is taken to the hospital after a car accident. He can’t speak for himself and needs emergency treatment. The hospital is able to find his emergency contacts on his phone and they include: his wife (you), his mother, his father, his college best friend, and his older brother. The hospital has to make decisions fast. Who are they going to call first to ask about his medical care?
In the State of Arizona, the hospital would follow the order laid out in the Arizona Revised Statutes § 36-3231.
First, they look for a health care directive. If there is a valid health care power of attorney, then the agent would act for the patient and make decisions in their place.
If not, then the statute states the following:
"[T]he health care provider shall make reasonable efforts to contact the following individual or individuals in the indicated order of priority...
1. The patient's spouse, unless the patient and spouse are legally separated.
2. An adult child of the patient. If the patient has more than one adult child, the health care provider shall seek the consent of a majority of the adult children who are reasonably available for consultation.
3. A parent of the patient.
4. If the patient is unmarried, the patient's domestic partner.
5. A brother or sister of the patient.
6. A close friend of the patient. For the purposes of this paragraph, 'close friend' means an adult who has exhibited special care and concern for the patient, who is familiar with the patient's health care views and desires, and who is willing and able to become involved in the patient's health care and to act in the patient's best interest.”
Regarding our aforementioned fictitious husband, we'll assume his doctors follow this pattern. They check the Arizona registry for a directive and find none. They check his wallet just in case. No luck. They start calling down the list. You’re still at work and can’t take a call, let alone one from an unknown number. Your husband’s older brother lives abroad now and doesn’t take foreign calls anymore. His parents answer when they are called. They were out to a late lunch and although they haven’t spoken to your husband since the holidays, and haven’t spoken about healthcare decisions with him since he turned 18, the decisions now fall to them. They may make decisions according to what he would want, but they could also be totally guessing and be very wrong.
The statute makes it clear that the first person “available and willing” from the list is who can reasonably make decisions for you in an emergency situation. Think about all the different decisions: blood transfusions, lifesaving measures, which surgery or options to use, which doctor can perform a surgery, which facility to choose, whether to wait on an option or to go as fast as possible, etc. Many people disagree when it comes to these decisions.
We'll switch the scenario to a young pregnant woman who is out shopping. She is due soon and begins to have serious pains. She tells a shopkeeper to call 9-1-1 and soon she passes out. She has discussed a birth plan with her husband and he knows everything she would want in any emergency. However, he took their toddler on a camping trip for the weekend and has no cell phone service. The pregnant woman knew that her siblings and parents have very different ideas than her regarding her birth plan and emergency wishes, but they are the only ones available and willing at the moment of the emergency.
We'll again switch scenarios to a very rebellious child who has just turned 19. She ran away and married an abusive husband, and her parents were recently happy to be able to establish positive contact once again. Their parent-child relationship is going well now, but they are worried about her home life. Suddenly, they are notified that their daughter has been hospitalized and is in a coma. Without any legal documents, her abusive husband is now the default decision maker.
In all of these scenarios, estate planning documents would be helpful and potentially lifesaving. Powers of attorney can be executed to determine decision makers in emergency situations. In Arizona, these include the General Durable Power of Attorney, Financial Power of Attorney, Healthcare Power of Attorney, and Mental Health Care Power of Attorney. They can be made to be immediately effective so that your designated agent can act for you upon execution, or they can be executed so that they are only effective upon your incapacity or inability to make your own reasonable decisions. They can be recorded in a state database and carried in your wallet and recorded in your phone. You can also leave copies of the documents with your primary care physician or local hospitals so that they have them on hand in case of emergency.
Powers of attorney and other estate planning documents can be incredibly helpful for anyone over the age of 18 so that they can circumvent the defaults of the Arizona state statute. Risking life-changing decisions falling to the first available and willing person on the list may simply not be the best choice.
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