Health Care Directive and POLSTS

Joe is 45 years old and in good health.  He is about to go into the hospital for a minor procedure and his clinic asks him if he has a health care directive.  What is it and why would Joe need one?

A health care directive is a document that tells your health care workers who should make medical decisions for you if you cannot.  In Joe’s case, he chooses his wife, Jane, to be his health care “agent.”   If there is a mishap with Joe’s surgery , and he is unconscious, Jane will decide, with the doctor’s advice, between various options for Joe’s care.

Because any of us could become unable to make decisions, either temporarily, or permanently, every adult should have a health care directive.  There is no doubt that this document is the single most important estate planning document you can have.

Health Care Directives provide instructions to the person who will make medical decisions on your behalf. They are not just for deciding who will “pull the plug.”  In today’s world of medicine, there are many choices of treatment—some aggressive, others less so.  If Joe is unable to make his own decisions because he is too sick, his health care directive says who will make those decisions, including the decision of where to live.  The instructions contained in a Health Care Directive help Jane to make the kind of medical decisions that Joe would make if he were able.

Fast forward to the future—Joe is now 89 years old and suffering from Stage IV Lymphoma.   What happens when Joe collapses in his apartment?  Jane calls 911 because she is scared, but she knows that Joe would not want to be resuscitated.  What now?   If Joe had worked with his doctor and obtained a POLST (Provider Orders for Life Sustaining Treatment) and that POLST were easily available to the paramedics, those decisions would already be made and the paramedics would know whether to try CPR, or whether to intubate Joe.

POLSTs are provided only by physicians and nurse practitioners and are medical orders to other health care workers.  POLSTs are generally only for people who are approaching life’s end.  They do not replace Health Care Directives, but supplement them.  Like a Health Care Directive, photocopies and faxes of the POLST are valid.  Unlike a Health Care Directive, there is little flexibility in the POLST.  One must be even more careful and deliberate when completing a POLST than completing a Health Care Directive.

There are five sections to the POLST and 3 relate to care:

  • CPR vs. DNR
  • Goals for Treatment—comfort care to limited intervention to full intervention
  • Treatments—choices about use of antibiotics and nutrition/hydration

If there is a 911 situation, and the POLST is readily available for the paramedics, the first responders will follow the instructions of the POLST—at least in Richfield and in Minneapolis, MN.  Any care section not filled out will receive the presumption of aggressive treatment.  First responders will not take the word of a family member or other person that such a document exists—it must be provided.

What is a Trust?

According to Black’s Law Dictionary, a Trust is “A legal entity created by a grantor for the benefit of designated beneficiaries under the laws of the state and the valid trust instrument.” What that means is: think of a trust as a basket that you own. You are the ‘grantor’. The basket holds assets. The basket is the ‘legal entity.’ You use the assets for your own benefit. You are the ‘beneficiary’, and when you die, your assets go to your children; they become the beneficiaries.
So, a Trust has 3 players:

  • the Grantor—the person who owns the assets put into the trust
  • the Trustee—the person who manages the assets for the benefit of the beneficiaries
  • the Beneficiaries—the person(s) who benefit from the assets—either by receiving the income of the trust, or by receiving the assets from the trust.

If I create a trust today, I may put my house, my bank accounts and my investments into my trust. The trust actually owns my assets now, not me directly. I can still do anything I want with my assets—reinvest, sell, or even give them away, but when I do that, I am acting as the ‘trustee’—the person who manages the trust. I am also the beneficiary of my trust—I benefit from the assets of the trust.
Say that tomorrow I suffer a massive stroke, and am unable to manage my finances. I still have my trust, but I cannot be the trustee. That job will fall to my ‘successor trustee.’ That trustee has a job to manage the assets and look after my needs, because while I am no longer the trustee, I am still the beneficiary.
If I succumb to the effects of my stroke and die, I am no longer the beneficiary of my trust—the new beneficiaries will be the people I have named when I created my trust—much like a Will says who will receive probate assets. At this point, the trust will probably terminate.
Trusts may be useful for some people because they allow (if properly created and managed) the owner to avoid probate on death. This is especially useful if real property is owned in more than one state. Trusts also maintain privacy for the family of the deceased person. Before you set up a trust, be sure to talk to an attorney who is working for your best interests. Trusts do great things, but they are not always the best answer.

Ratings and Reviews