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Think of Your Health Care Needs in Advance

Think of Your Health Care Needs in Advance

The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

For most people, thinking about not being able to make financial decisions is bad enough.  But thinking about not being able to manage health care is even worse.  After all, money is just that: money.  But your health and health care is different.

So this week I thought I write about, what happens if you are no longer able to manage your health care?  What if you are incapacitated such as with dementia and can’t make health care decisions for yourself?  Who will make those decisions for you?

Two Options

You have two options: Plan ahead, or do nothing.  I do not advise doing nothing.

For planning ahead, you can choose who you want to make health care decisions for you if you’re not able to make those decisions yourself.  In Texas, you do this by creating an power of attorney for health care, which is sometimes called a health care power of attorney or a medical power of attorney.

Power of Attorney

In your power of attorney for health care, you name someone (your health care agent) to make health care decisions for you if you can’t.  These decisions include doing things like talking to doctors, scheduling health care appointments, consenting to medical treatment, picking up prescriptions and so on.

Who decides whether you’re incapacitated?  Again, you choose in advance who decides whether you are incapacitated.  You may have a doctor determine that you’re incapacitated. Many people choose to have a doctor make this decision, but you need not have a doctor make this decision.  You can also name a spouse, children, or someone else you trust.

Think of Your Health Care Needs in Advance or:

What happens if you don’t plan ahead?  If you don’t have an power of attorney for health care and you become incapacitated, someone such as a family member or loved one will have to file a case with the court to ask for them to be appointed as your guardian.  While we work with people to establish guardianships, I don’t advise this as a viable alternative to estate planning and creating an power of attorney for health care. This is because there are several problems with guardianship cases.

First, guardianship cases can be slow.  While it’s possible to get an emergency order if needed, guardianship cases often can take several months.

Second, guardianship cases are expensive compared to planning ahead.  Imagine a scenario where a person needs to be cared for.  Everyone agrees:  No one is fighting over whether the person needs a guardian, or who should be appointed as guardian.  For this “simple” case, attorney’s fees may range from $7,500 to $10,000.

The third problem with guardianship is that it’s public.  Everything that happens in court is public.  Plus, anyone who is an “interested party” to the person subject to the guardianship is entitled to notice of the case and has the opportunity to make their wishes and desires known.  Sometimes families are estranged from each other.  But the brother who you haven’t talked to in 10 years, and the parent that you haven’t seen in 5 years, are all entitled to notice of the case and have the opportunity to appear in court and make their wishes known.

Plan Ahead

For these reasons, I don’t advise that you do nothing.  Instead, it’s important that you plan in advance.

Having a well written power of attorney that includes health care is an important part of a comprehensive estate plan.  I suggest that it may even be more important than setting up a Last Will and Testament, because an power of attorney for health care will help you and your agent manage your health care while you are still alive.  It’s worthwhile to give your health care  some thought in advance.


Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

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