An estate planning attorney expects to turn on HBO Max to escape from the day-to-day issues on which we advise our clients.
Yet, in an early episode of The Pitt, a medical drama set in a hospital emergency department, a common estate planning decision took a leading thematic turn.
The Fictional Situation
An elderly gentleman is transported by ambulance to the emergency department at the fictional Pittsburgh Trauma Medical Center. He is in bad shape.
His son and daughter are called to the hospital to find out that their Father has named them co-health Care Surrogates.
In naming them co-health Care Surrogates, their Father did not permit them to act unilaterally but rather required them to make decisions jointly regarding his health.
Son and daughter, the co-Health Care Surrogates, promptly disagree on the level of life-sustaining treatment their father should receive. This leads to a multi-episode story arc of whether their Father’s life should be prolonged or whether life sustaining treatment should be terminated.
The Real-Life Legal Issue
Powers of attorney are an essential element of every estate plan, and something that we discuss with every client.
A power of attorney is a document that authorizes another individual to act, communicate, and effectuate decisions on your behalf if you need assistance or cannot act or communicate for yourself.
An Advance Medical Directive nominates a “Health Care Surrogate” as your medical decision-maker. A Financial Power of Attorney (or “Durable General Power of Attorney”) nominates your “Agent,” who is your financial and legal decision-maker.
The Co-Agent Quandary
When selecting a Surrogate or Agent, often clients struggle with whether to appoint children as co-Surrogates or co-Agents.
Picking one of multiple children to appoint as a Surrogate or Agent can feel like a test of “who do you love more?” Really, the question is “Who do you trust to make a sound decision in a highly emotional and difficult time?” To avoid making a choice, clients regularly consider selecting co-surrogates or co-agents.
Our advice for clients considering selecting co-Surrogates or co-Agents is usually this:
- You know your children better than we ever will.
- Think as objectively as you can about whether your children will be completely on the same page so that having them act together will be drama-free. Do they unquestionably communicate and collaborate well with each other? Have there ever been feelings of jealousy amongst the two of them?
- If you select co-Surrogates or co-Agents, you can permit them to act unilaterally rather than jointly. However, while on the one hand this might make their lives easier in terms of effectuating your decisions, it could also cause conflict if one child was reached first and made a decision that the other felt like they should have had input.
- Estate planning is no time for diplomacy. Pick whoever you believe will do the best job. You can select one child to be the Health Care Surrogate and one to be the Agent, and play to their strengths. Or you can select the same child for all roles.
- If you really want to explain yourself, you can leave a letter behind explaining your decision and thought process. Or you can always blame your estate planning attorney and say we recommended you choose one!
The Takeaway
The tortured anguish felt by the fictional characters on The Pitt can be a real-life story if you select co-Health Care Surrogates and co-Agents who would find it truly impossible to agree. As estate planning attorneys, we understand these are often the most difficult decisions for our clients, and we try to guide clients with compassion and pragmatism because nobody wants to leave behind a legacy of conflict.
How can we help you with your estate planning decisions? Contact estate planning attorney Liz Farley at (301) 656-1177 x316 or lfarley@bulmandunie.com
