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Advance Healthcare Directives the Living Will

 

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Advanced healthcare directives sometimes called “Living Wills” are legal documents which instruct health care providers of the level of care you desire if you are unable to speak for yourself.  Generally three conditions are anticipated 1) terminal condition, 2) persistently unconscious and 3) end-stage condition. If the patient is unable to communicate the Living Will provides health care providers with instructions.  Oklahoma’s statutory form suggests three levels of treatment to chose from:

  • Three traffic lights icon (done in 3d, isolated)Do everything possible to extend life including artificially administering nutrition and hydration if I unable to take these by mouth.
  • Three traffic lights icon (done in 3d, isolated)Do not provide any life extending treatments but do artificially provide nutrition and hydration if I unable to take these by mouth.

 

  • Three traffic lightsDo not provide any life extending treatments and do not artificially provide nutrition of hydration is I am to by take these by mouth.

 

Patients are no limited to these options and can provide detailed instructions such as time limits.  clock-439592_1280-tiny

Time Limit on Decision:  What if I live too long based on my decision?

Many people choose the “Do Everything” or “Hydration & nutrition only” options.  The reasoning is rational, they don’t just want to die without some efforts being made.  But what what if these measures only keep you alive without any chance of recovery?  It may be smart to include provisions to limit the duration of such treatment.  It might be good to include a statement that such measures should be withdrawn after _____ days.

Healthcare Proxy

It is important that your doctors, hospitals and close family members have a copy this record.  Also it is good to have these records available online at a moment’s notice.   An In Case of Emergency Card is a service Winblad Law offers See my DocuBank Page for more information.

Health Care Proxy

You may also chose a Health Care Proxy to make medical treatment decisions for you in the event that you are unable to make such decisions.  Your proxy can make decisions to the extent that they do not conflict with your Living Will.  Communication with persons selected as a health care proxy is important.

Organs and Tissue Donation

Oklahoma’s form provides an area that allows for the donation of selected organs,  tissue or the entire body.  These may be donated for another recipient, research or teaching.

Medical Power of Attorney

A Medical Power of Attorney is similar to the Living Will in that it grants powers to a trusted individual.  However, the Living Will does not address conditions that are not considered to be end of life.  A common example is granting authority to make health and living decisions in case of dementia.   The Medical Power of Attorney permits the person selected to become an attorney-in-fact to make medical decisions.  The power can be granted immediately or it can “spring” into existence if two doctors determine that you are incapacitated.  You may, but are not required to, grant this person the power to issue a do-not-resuscitate order or DNR.

Do-not-resuscitate

A “Living Will” is not the same as a Do-Not Resuscitate form.  This form isn’t for everyone. It is intended for use by a person who is near death. An advance directive doesn’t go into effect until two physicians certify your condition as terminal. But the DNR consent form goes into effect immediately. Therefore, it should be signed only by someone who is terminal in his or her own mind and has made an informed decision that he or she does not want to be resuscitated in any circumstance.

 

Federal Patient Self-Determination Act requires that all Medicare-participating healthcare facilities inquire about and provide information to patients on Advance Directives; it also requires these facilities to provide community education on Advance Directives. See 42 C.F.R. § 489.102. All healthcare facilities are required to:
• Provide information about health care decision-making rights.
• Ask all patients if they have an advance directive.
• Educate their staff and community about advance directives.
• Not discriminate against patients based on an advance directive status.

 

More Facts.

The U.S. Agency for Healthcare Research and Quality (www.ahrq.gov), in a 2003 article, “Advance Care Planning: Preferences for Care at the End of Life,” found the following:
• Less than 50 percent of the severely or terminally ill patients studied had an advance directive in their medical record.
• Only 12 percent of patients with an advance directive had received input from their physician in its development.
• Between 65 and 76 percent of physicians whose patients had an advance directive were not aware that it existed.

More Americans Discussing – and Planning – End-of-Life Treatment. The Pew Research Center, January 2006. Article
• 42% of Americans have had a friend or relative suffer from a terminal illness or coma in the last five years and for a majority of these people and 23% of the general public, the issue of withholding life sustaining treatment came up.
• An overwhelming majority of the public supports laws that give patients the right to decide whether they want to be kept alive through medical treatment.
• By more than eight-to-one (84%-10%), the public approves of laws that let terminally ill patients make decisions about whether to be kept alive through medical treatment.
• One of the most striking changes between 1990 and 2005 is the growth in the number of people who say they have a living will – up 17 points, from 12% in 1990 to 29% now.

 

peach farmersUnderstanding everyone’s vision is important for the development of a succession plan.  In order for any enterprise to succeed all parties must be pulling in the same direction.  Having an agenda for a succession plan is vital.  However, clear and honest communication can identify problems as well as opportunities.  Family members are often surprised at other family members’ visions or expectations.

Prior to a meeting the participants should be encouraged to express their goals and plans.

Disclosure of these desires should help shape the succession discussions.  The willingness to accept input from stakeholders will help set a proper tone for open dialogue.  It may be desirable to share the answers with family members before the meeting. Common questions may be:

  • How do you see your current role in the operation?
  • What roles would you like to have in the future?
  • How do you see your involvement changing or evolving?
  • Describe any milestones or events that will cause your involvement to change:
  • Describe the obstacles or challenges to the changing operation.
  • What resources can you bring to the operation? This may include financial, marketing, labor, innovations, knowledge, etc.

A form is available Here.

Bankruptcy is a legal proceeding designed to relieve debtors with relief from their creditors. A debtor is required to list all his assets, income and creditors. Most bankruptcies involve cases under Chapter 7 or Chapter 13 of the Bankruptcy Code.

Unless a proof of claim is timely and properly filed an unsecured creditor will likely recover nothing.

Proof of Claim Form

Proof of Claim Form

Overview of Types of Bankruptcies

Chapter 7: A Chapter 7 is generally known as a liquidation. The bankruptcy trustee reviews the debtor’s schedules, testimony and sometimes outside sources to determine whether there are assets available to be sold with proceeds to be paid to creditors. Creditors should receive a “Notice of Chapter 7 Bankruptcy Case, Meeting of Creditors, & Deadlines.” Usually these involve “no asset” cases the bankruptcy notice states:

There does not appear to be any property available to the trustee to pay creditors. You therefore should not file a proof of claim at this time.
If it later appears that assets are available to pay creditors, you will be sent another notice telling you that you may file a proof of claim, and telling you the deadline for filing your proof of claim.

In the event that such assets are later found the Trustee sends a “Notice to File Claims” which will usually include a “Proof of Claim” form.
Occasionally, the notice indicates that there are assets and may actually send a proof of claim. In this case the claim must be completed and filed within the deadline provided.

Chapter 13: A Chapter 13 requires a consumer debtor to make monthly payments pursuant to a plan. The Trustee then pays claimants pursuant to the terms of the plan. Unlike a Chapter 7, generally creditors should file a proof of claim in Chapter 13 cases. This is especially true if the creditor holds a secured claim (a claim secured by a mortgage or security interest). The plan should provide for the payment of the secured value of the property.
Filing and Deadlines: Before a claim can be paid it must be filed. An unfiled claim will not be paid even if the debt is acknowledged in the debtor’s schedules or plan. The deadline is the last date which a creditor can file a proof of claim. Courts are extremely reluctant to permit a creditor file a late claim. Therefore, it is critical for a creditor to file a proof of claim prior to the deadline. A debtor or trustee can file a claim on the creditor’s behalf but these instances are rare and are also subject to time limits.
Amount: The amount of claim should be limited to the principal, interest and costs that exist on the date of the date that the debtor filed bankruptcy.
Secured vs. Unsecured: Claims are either secured or unsecured. A claim is secured when the creditor has a lien upon property. Typical examples include car loans and mortgages on real property. Often stores retain a “purchase money security interest” in items sold. A creditor is considered to be secured to the value of the property. If the property is valued less than the debt owed then the claim is partially secured and partially unsecured. The existence of security may impact creditors differently depending upon which bankruptcy case is chosen by the debtor.

Filing Claims

Chapter 7 Cases:

In Chapter 7 case generally only the unsecured claims are paid because a secured creditor may look to the secured value to recover its claim. A creditor may want advice on how to proceed especially if recovery of the property is doubtful. Also, if the trustee is selling property secured property the underlying debt must first be satisfied.

Chapter 13 Cases:

In a Chapter 13 case the debtor is required to pay the amount of the secured claim if the property is to be retained. Typically, the debtor’s plan states a value of the asset and that amount will be paid. For example, if a debt is secured by furniture and the debtor’s plan states that it is secured for $500, then that is the amount that the creditor will be paid. The remaining balance of the debt is treated as unsecured. The creditor will share in a pro rata portion of the remaining pool of funds. Therefore, often it is not enough to file a proof of claim but the secured creditor may also seek an attorney’s assistance to insure that the full value of the secured value is being paid. This must be done as soon as the Chapter 13 case is filed.

Conclusion

Filing a proof of claim is generally the only way that an unsecured creditor can recover from someone who has filed bankruptcy. It is important to file proofs of claims properly and to be able to justify it if challenged.

For assistance with this or other bankruptcy creditor issues contact:
Richard Winblad, 405-340-6554

WWW.WinbladLaw.Com

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