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"Back-Up Decision-Maker" is in Everyone's (Fiduciary) Best Interests

| June 26, 2020


"Now that we’re living through a pandemic, having this conversation ("The Talk" about your wishes) has become especially urgent, when mild flulike symptoms can turn into life-threatening respiratory failure within hours.  Before Covid-19, we often had the luxury of time to talk about a patient’s values and priorities. Family, pets, being at home, independence and faith were at the top of almost everybody’s lists."  ... 

"Many families are surprised to discover that a standard living will doesn’t provide specific guidance on the numerous decisions that must be made when a person is critically ill and may require life support.  The most powerful thing that patients and families can do to take control of their health care is the simple act of thinking through what is most important if they become seriously ill and identifying a person they trust to speak for them if they can’t speak for themselves."

Source: New York Times

Begin with the End in Mind

Here is where I become more than a little annoying. This note rightly belongs at the end of this post, but for urgency I'm putting it here.

IRL - In Real Life - the Power(s) Holder is dealing with institutions - medical and / or financial - and their representatives often employees. These people, and they are humans like the rest of us, have their own job descriptions. And, in many (but not all) cases they are direct employees of the institution(s.) Which might mean these employees are not necessarily acting in the Fiduciary interest of your Loved One. In fact, your interests might be very opposed.

So it is of critical importance to get your Document "Ducks" In A Row. Have the proper documents prepared. Have these documents available to give copies to the appropriate people. (Never hand over an original unless you have no choice!) Make sure these documents are not "stale-dated." 

Consider having electronic availability to these documents for yourself and / or others because sometimes these things occur on an emergency basis. 

Incapacity might NOT be Black & White

When a person is (hopefully temporarily) incapacitated, that mean's s/he is unable to make their own decisions, e.g. medical and / or financial. So a properly-documented "Back-Up Decision-Maker" can (should!) be "pre-appointed" with appropriate documentation based on laws of your jurisdiction(s.) Depending on your jurisdictions, required documents might include:

  1. Durable (financial) Power of Attorney (POA)
  2. Health Care Proxy / POA

"The goal of “The Talk” is to be specific about what matters most, because “quality of life” means something different to every person ... " "Some people say it’s most important to live as long as possible. Others feel most strongly about quality of life. They worry about suffering for no purpose, becoming burdensome, or surviving in an unacceptable condition."

What can happen - some possible situations:

From the MD writing about Post-COVID ... 

"Most who survive being on a ventilator)require weeks to months in a skilled nursing facility. Recovering patients may struggle with memory loss, post-traumatic stress disorder, and routine activities like walking and eating. Many will never return to their prior quality of life."

Bruce's Comment:

  1. If you have never been someone's Power Holder before, it is (obviously) not easy. If the person is completely unable to communicate and you are the only Power Holder, at one level it is simpler. But you of course bear 100% of the responsibility.
  2. If you are the sole Power Holder for an aging parent, other family members might choose to "dip their oar in the water" in ways that are not helpful ... or worse!
  3. If you are the "Co" Power Holder, that has its own set of complications.
  4. And if the person for whom you are Decision-Maker has some ability to communicate, that presents different challenges. If the person can communicate but no longer has the ability to determine her/his own best interests, that can be part of your challenge.


Making it happen ... 

  • "Who is your backup decision maker? If you have not assigned a “durable power of attorney for health care,” it falls to your legal next of kin. In the state of Washington, for example, your legal next of kin is your spouse or state registered domestic partner, then children who are at least 18 years of age, then parents, and then siblings. In most states, the health care proxy document needs to be notarized or witnessed by two people unrelated to you.

  • Have you completed a living will? Does it reflect your wishes? Who has a copy?

  • Talk with your backup decision maker about your wishes. Share with them what is most important to you, for example: being at home, being with family, living as long as possible, being able to say goodbye. Honoring Choices Pacific Northwest and the Conversation Project offer helpful guides to get started with these conversations and to document them."

Five Wishes is another resource to consider.  "Five Wishes is a complete approach to discussing and documenting your care and comfort choices. It's about connecting families, communicating with healthcare providers, and showing your community what it means to care for one another."

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