The Importance of Health Care Powers of Attorney
How can I ensure that I stay at home until I die?
One of the most common questions we get from our clients when we are putting together health care power of attorney documents is whether the document will allow their designee to put them into a nursing home against their wishes, because, “I want to live at home until I die.” In typical lawyer fashion, we answer, “It depends.”
Health care power of attorney powers do not kick in automatically, so you need not worry about being “put into the old folks home” the minute you sign the document. The powers you are giving your designee are “springing,” which means they spring into effect only when needed - when you are unable to make decisions for yourself.
This means you cannot be put into a nursing home if you do not want to be so long as you are able to adequately care for yourself or arrange for someone else to care for you in your home.
If, at some point in time, you can no longer physically take care of yourself and are mentally unable to make arrangements for someone else to care for you, the health care power of attorney then springs into effect. The person you designated then has full authority to direct your care, which includes the power to put you into a nursing home or other facility.
There are certain things you can do to help you maintain your independence as long as possible.
- First and foremost, you should think long and hard about who you are granting health care decision-making rights to. The right person for the job is someone who is going to respect your wishes. Do not pick someone you do not trust absolutely because the nursing home decision is just one of many decisions they could be making on your behalf.
- Talk with the person you have chosen to be your health care decision maker while you are still able to do so! They cannot follow your wishes if they do not know what they are. This can be a difficult conversation to have since nobody likes to think about being too sick or injured to take care of themselves, but it is critical to make time to have it.
- If carefully drafted, and sufficiently funded, a living trust can protect you from unwanted admission to a nursing home even after you are no longer able to care for yourself or make decisions about your own care. With a trust in place, you can designate a trustee that will arrange and pay for your care out of trust assets in the exact manner you specify. So long as there are sufficient assets in the trust to pay for the care you require, you need not worry that you will be taken out of your home.