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Posted: April 18, 2005

Practical Caregiving

Clarity on Legal Documents, and Caregiver Frustration

Gere B. Fulton is an attorney in South Carolina who offers some very helpful information to clarify my recent column on living wills and durable powers of attorney. It is important for you, my readers, to understand the differences, what each document covers and when each is used. This is an important topic, so I'm pleased to have Gere's input.

Meanwhile, my emailbag has delivered a letter of strong frustration from Judy in St. Paul, who thinks her live-in father-in-law is lazy. But is he?

Dear Ms. Donahue:

I just finished reading your commentary on advance directives (In Schiavo's Wake, Time to Clearly Record Your Own Wishes) in Caregiver's Home Companion (posted April 4). I was disappointed to see you repeat a common error regarding such documents. You stated, "There are two documents your parents should be sign [sic]--a living will and a power of attorney for healthcare decisions." I would like to respectfully correct you on this and ask that you call this to the attention of your readers.

Although advance directives statutes vary from state to state, living will statutes are invariably more restrictive than "durable" power of attorney for healthcare (DPAHC) statutes. The former are typically effective only in cases of terminal illness and/or permanent unconsciousness while the latter authorize the surrogate (appointed representative) to make any decision that the incapacitated individual could make were s/he able to do so. It is also typical for the statutes to include a statement that the living will takes precedence over the DPAHC. The only reason for anyone to have a living will is if they truly have no one to comfortably appoint as their surrogate; the vast majority will be best served by having only a DPAHC.

I have been teaching, counseling, and writing about advance care planning for the last 35 years, most recently with medical students and residents. It's important for all of us to talk about advance directives at every opportunity, but confusing readers about this will only make things worse, not better.

Please feel free to get in touch with me if I can help with additional information. And please make a correction for your readers.


Gere B. Fulton, Ph. D., J. D., Columbia, South Carolina

Dear Gere:

Thank you for writing. Your points are well explained. I do want to emphasize that everyone should check their state laws to make sure they sign the papers they chose in a way that is legally accepted.

Dear Jean:

When I married my husband, I said for better or for worse, but I didn.t think the .for worse. would include my father-in-law. He is making my life miserable and causing my husband and I to fight. What do you think about this situation?

My father-in-law lives with us now because he has a few health problems. He is taking medicines for those problems and should be picking up around himself. He doesn.t. In fact, he sits around and complains all the time. He acts like he is in pain all the time, but I know better. He is taking medicine for that.

I think he is just lazy, but my husband makes excuses for him and says he is getting old. He is getting old (he is 72), but I know many people that are older than he is and they are very active.

How can I get my husband to see that his father is taking advantage of us? How can I get him to tell his father to get up and do something for himself?

Judy L., St. Paul, Minnesota

Dear Judy:

I doubt your father-in-law's actions (or reactions) are quite as simple and straightforward as you make it sound. There is usually a reason why a person acts the way they do. There are some questions I think you should consider about the situation. Has he always been this way, or has he changed? Sometimes these changes can be gradually.

Your father-in-law's actions could be caused by a physical problem that has developed -- and that you (or he!) are not aware of. For example, they could be a result of the medicine he is taking or because of the medical condition that makes it necessary to take medicine. You say that he is taking pain medicine, but it may not be helping. He may need to change the medicine to get relief from the pain. Have you talked with his doctor about his condition and his actions in your household? I would.

Is he in pain? Is he depressed? Why is he taking the meds? How does that diagnosis affect a person? What are the side effects of the medicines? There are a numerous questions that need asked and answered to get at the root of the situation. And frankly, Judy, I am not in a position to know the answers without the input that can only come from you acting on the scene in coordination with your father-in-law's doctor. Why don't you or your husband simply call his doctor and ask him?

Also, if your father-in-law hasn.t had a recent thorough examination, make an appointment for a complete physical exam. The doctor does need to know how he is acting -- that is important to discuss right away. The doctor may want to change a medicine or there may be a physical problem that he can address.

If that doesn.t provide clues and relief, you might also consider getting a second opinion on your father-in-law's health. A second opinion is always a good thing.

© 2005 Pederson Publishing, Inc. All Rights Reserved.
Commercial use, redistribution or other forms of reuse of this information is strictly prohibited without the prior written permission of Pederson Publishing.

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