Phil was living independently with his wife when he began falling on a regular basis. Once his wife had to call the fire department to help him up because she could not manage to lift him on her own. Once he fell in the middle of the night and was found in the morning. Phil did not want to go to assisted living but was transferred due to safety concerns. He complained about the new environment and frequently asked to go home.
It seems clear that moving to assisted living was in Phil’s best interest. It also seems clear, knowing Phil, that it was not the decision he would have made. In Phil’s case, what is in the best interest of the client takes away Phil’s agency to make his own decisions. Moving into assisted living and getting rid of the car are both common examples of families, clients and agents having different opinions of the right decision.
Health care agents and attorneys-in-fact are responsible for acting in the best interests of their principal. So, if your clients have named health care agents to assist them with their health care decisions, or have created a power of attorney so these agents can assist with financial decisions, those agents are bound to make decisions in the best interest of the client. In situations like Phil’s where the client’s safety is at risk, we find it easier to defend the best interest of the client than to defend the client’s right to make their own decisions.
On the other hand, end-of-life decisions are the easiest to demonstrate that the wishes of your client probably align with the best interest of your client. Many people include a living will when they name a health care agent. This helps to identify the desires of the client. If your client does not want to live in a vegetative state, doctors should not go to extraordinary measures to maintain life.
But what happens when the client’s health situation does not align with the examples noted in the living will? One of the questions on a Minnesota form is, “If I were completely dependent on others for my care and unable to decide or speak for myself, I would want: (Fill in the blank).” That can cover a wide range of circumstances. Your answer may be different if you had the mental capacity to know what is going on around you, versus having dementia. Perhaps the answer would be different if you were bedridden or if you were able, with assistance, to go shopping, or to attend ball games and events.
The point is, the details of the situation matter in determining what is in the best interest of the principal, your client. How does the agent get a good feel for the correct response to a nuanced situation?
Providing Long-Term Practice
One way to improve the agent’s ability to determine the correct response is to get your financial and health care agent involved earlier. Many people have named their spouse as their first agent so this should make that easier. But you want your agent to understand your decision-making process even if the agent is not your spouse. Make a point to review your budget together once or twice per year. Keep each other up to date on your health care at the similar intervals.
If your client has a chronic diagnosis, it may be time to get the agent a little more involved — depending on the diagnosis. At some point, it may make sense to have your agent attend doctors’ visits with your client. The goal of this double coverage is two-fold: This allows your agent to get a better understanding of your client’s condition and it allows your client to have a second set of ears listening to the diagnosis and treatment plan. Depending on the patient, two people attending the same appointment occasionally come away with two different recollections of the conversation. Discussing the appointment can help your client and their agent get on the same page.
Those who cherish their independence and privacy may question involving their agents while they are still able to make decisions on their own. Involving the agent will allow the agent to better understand your decisions and preferences. Take questions about your decisions as a good sign that the agent is trying to understand your wishes.
Involving the agent also will allow you to better understand your agent. If they try to understand your decisions, that is good. If they express dissatisfaction or disapproval of your decisions, that is a good reason to find another agent. Imagine if you do not find out they disapprove of your decision-making until you are unable to intercede. Conversation may resolve the conflict or you may have to replace the agent, whether the agent is your spouse or someone else.
The Big Question and the Smaller Ones
Of course, the big question is whether your agent will end life support in situations where your client wishes that support ended. One aspect of the decision is if the agent has a clear idea of what your client wants; the other aspect is if the agent is able to make the decision. The agent needs to be emotionally able to make the decision your client wants made. Some agents will be up front with you about their inability to end your life. If they suggest that, take them at their word and find a new agent.
Smaller decisions can come into play also. Recently, false rumors were circulating that fetal stem cells were used in creating COVID-19 vaccines. While much of that concern has been shown to be unwarranted, some people have strong feelings about their medical treatment that may not be widely shared. The issue here is whether your client and the agent have the same perspective on the issue, or if the agent feels they morally can follow your client’s wishes if they have different views.
There may be other controversial medical treatments and controversial decisions that the financial agent or the client might want, such as stem cell treatment for osteoporosis, skydiving for 90-year-old George H.W. Bush and running a marathon for 92-year-old Gladys Burrill. What happens when the agent and your client have different views on the wisdom of these ideas?
Increasing the involvement of the agent while your client is active and making their own decisions may help identify and reduce areas of conflict. It may help ensure that decisions your client cannot make on their own are made in a way that more closely approximates the client’s choices.
John Comer, CFP®, is a financial advisor with Twin Cities-based McNellis & Asato, Ltd., which offers financial planning and investment advisory services through Raymond James Financial Services, Inc. He is a coauthor of the forthcoming book “Joining the Longevity Revolution: For Advisors and Clients,” which is expected to be in print later this year. He can be reached at 952-548-3134. Any opinions are those of John and not necessarily those of Raymond James or McNellis & Asato.
