By Diane Weinberg
As estate planners and elder law attorneys, we frequently bemoan the fact that so few individuals plan for disability or a final illness. Anyone who checks the website AVVO.com will see dozens of posts where people are seeking help because their family members failed to plan. There are questions from adult children trying to figure out how to pay a parent’s bill where the parent did not have a power of attorney naming someone to act on her behalf. There are also questions about trying to provide for a parent’s care where the parent did not sign an advance directive and the children are divided as to what type of care that parent should receive.
In Georgia, as in most states, statutes provide who is to make a decision on behalf of an individual if that individual is not competent to speak for herself. First, the statute orders the medical provider to look to an advance directive. If there is none, then the medical provider is to look to guidance from the spouse, adult children, parents, siblings and so forth. In the event that there is no one under the statute who can make these decisions, a friend or family member can go to court to obtain a temporary medical consent guardianship designed specifically to allow someone to make medical decisions on behalf of the incapacitated adult. However, except in the case of an advance directive, nothing in the statute requires that the decision maker follow the patient’s desires with respect to the medical treatment. A child who is not ready to let her mother pass can allow that parent to remain on life support for an extended period of time even if doing so would be against that parent’s wishes.
A bill recently presented in Congress offers a cash incentive to individuals to create an advance directive and register those directives with the Centers for Medicare and Medicaid Services (CMS). The Medicare Choices Empowerment and Protection Act, Senate bill no. 2240, will pay a Medicare beneficiary $75.00 for creating, adopting or registering an advance directive on-line, and $50.00 for doing the same in writing. The CMS database will not store the advance directive itself, but it will provide information as to which electronic database is storing the advance directive. No incentive payment is available to individuals with existing advance directives, but these individuals can register and identify the service that holds their advance directives.
Interestingly, this bill is sponsored by Republican and Democratic senators – Senator Chris Coons (D-De) and Senator Richard Blumenthal (R-Ct). So what are your thoughts – should cash payments be used to encourage people to plan for their end-of-life needs, and will this help resolve the challenges family members face when dealing with these issues?