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Today we are living longer than ever, managing conditions which would have killed us a few short decades ago. We are living for years with high blood pressure, high cholesterol, diabetes, decreasing mobility and slower mental processing. We want to stay in charge of our medical care, our personal care and our finances.

How do you take charge of medical care?

By planning ahead, making the proper arrangements and delegating, we can.

Medically, the first thing we need to do is to make sure that the people on our team and others who care about us can know what is happening. A HIPAA Medical Information Release can handle that.

Then we need to decide who will speak for us when we cannot communicate. After age 65, half of us arrive at the hospital unable to direct our own care. In Texas the person whom you appoint as your agent in a Medical Power of Attorney speaks for you: she does not get to make her own decisions. To guide her, it is a good idea to attach a letter stating what you think you would want in certain situations. It may well be that the situation with which you are confronted is not addressed by the letter, but the letter will tell your agent the direction in which to go and comfort her that she is, in fact, doing what you would choose.

If you do not trust that your agent will be able to voice your decision if you are in a permanent vegetative state or found, even with medical treatment, to have less than six months to live, you may also want an Advance Directive to Doctors and Surrogates. Unless you have a diagnosis and a prognosis, this document, too, should focus on your values, not on any specific medical procedure. Goals change with changing circumstances. Values remain the same.

It is possible that someday you will need nursing home care, whether for short-term rehabilitation or because you need a licensed vocational nurse “on call” instead of visiting you at home or in an assisted living facility once or twice a week. Medication is a major challenge in this situation. A July 2014 study found that over a six month period, 1/3rd of the residents in nursing homes studied became temporarily demented, delusional or deranged due to a medication error.

As we take more medicines, it becomes harder to predict how they will interact. As our condition changes, we react to medication differently. Sometimes medicine is given at the wrong time or in the wrong dose. If this happens to you, the psychiatrist who sees you will be seeing you for the first time. To give him a fair chance at an accurate diagnosis, sign a Declaration for Mental Health Treatment requiring that your regular physician and family be contacted before anything else is done. You can also choose what you want done first, whether you want a male or female attendant, whether you want shock therapy and what drugs you do or do not want. Note that psychoactive drugs are counterindicated for anyone with dementia or heart problems.

Mental illness, whether or not drug-induced, and cognitive decline are two different things. We all experience cognitive decline, losing our facility with numbers and complex plans from 53 onward. But it is not memory which is the biggest challenge and connotes dementia. It is loss of executive function, the ability to reason and to improvise. Sometimes this progresses to the point that we become unable to provide for our own medical care, manage our finances, provide for our own food or shelter.

While a court could then declare that we lack legal capacity and appoint a guardian, if you have a good Medical Power of Attorney and a good Durable [or Financial] Power of Attorney, there are few situations in which you might need a guardian. You would need a guardian to take over if the agent under one of these documents was misbehaving. You would need a guardian to take over if you became demented and refused to go to the nursing home: other than you, the only person who can decide where you live is a guardian. You can choose who this would be with a Declaration of Guardian in Case of Need. Naming who you would not like to be your guardian can be very important. You do not want a paid non-family caregiver or an assisted living facility or nursing home inserting themselves.

You may want other documents which can only be provided by a physician: an Out-of-Hospital Do Not Resuscitate Order, an in hospital Do-Not-Resuscitate Order or even a Do Not Hospitalize Order.

You can also stay in charge of what happens later. You can determine how your organs are donated, what happens to the rest of your earthly remains and decide who should handle this using an Appointment for Disposition of Remains and Anatomical Gift Declaration.

It’s your life. Live it the way you want.


Elder law attorney, Terry Garrett, is a member of the National Academy of Elder Law Attorneys and is an Approved Guardianship Attorney. She assists people in elder law, estate and special needs planning, guardianship and settling estates. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.

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