Health Care Planning

In the past, if a person was critically ill, his or her family members and doctors gathered, discussed the facts, and made the decisions that were in the patient's best interests. That time is no longer. Fearing malpractice litigation, hospital and doctors now refuse to remove extraordinary medical treatments unless the patient has executed a living will, or the family has obtained a court order. And, if there is no living will and the family must go to court, the burden of proof is what they can prove the patient said he or she wanted to have done, not what is in the patient's best interests.

The United States Supreme Court has ruled that each and every American citizen has a constitutional right to consent to, or refuse, medical care and treatment, and the right to indicate personal wishes through written instruments or other means established under state law. This has made health care issues a crucial area for consideration during the estate planning process. Health decisions documents are now a critical part of the estate plan.

A new living will law was enacted in April 2004 by the Oklahoma Legislature, and became effective on November 1, 2004. This law provides for a document called an Advance Directive for Health Care, and, in addition to the traditional living will, includes a provision for the appointment of a health care proxy - a person designated to make health care decisions when a patient is incapacitated or no longer able to communicate. The directive gives the patient the option whether or not to receive extraordinary medical care and treatment and whether or not to receive artificially administered food and water under various circumstances and conditions. Any living will signed before November 1, 2004, should be redone. Amendments to the law effective November 1, 1995 add an organ donation designation section to the Directive. This change is optional.

The Advance Directive for Health Care should be supplemented with durable powers of attorney for health care decisions, and issues such as the appointment of guardians and who will be in charge of funeral arrangements should be considered.

In addition to planning for health care decisions, some families must face dissipation of their entire estate because of medical expenses and long term nursing care. Special needs trusts, or Medicaid-qualifying trusts, can be used to preserve the family's wealth, in conjunction with proper exempt property planning and allocation. This is a difficult area of the law, since the federal and state governments are constantly trying to plug the available loopholes, and the laws change frequently. These families also should consider the use of long-term health care insurance to help meet these special needs.