Living Wills and Healthcare Proxies

Important  Issues for Financial Planners

By Dr. David Edward Marcinko; MBA, CPHQ, CMP™

By Hope Rachel Hetico; RN, MHA, CPQH, CMP™

dave-and-hope13Some current financial planning issues, for advisors are as follows: 

·         The constitutional right to refuse medical treatment is continually being challenged. The cases generally have been decided in favor of the patient. The law in this area is changing fast and bears watching.

·         Is the client competent to sign eldercare documents? It is best not to wait until the client becomes ill before making plans.

·         The intentions of the client must be ascertained and clearly stated in the documents, especially in the living will. The patient’s wishes must be clear and convincing, if they are to be followed. For example, if nutrition and/or hydration are to be removed from the patient’s healthcare, then this instruction must be clearly stated. Other special medical procedures may be required unless expressly excluded by the living will.

·         The determination of terminal and non-terminal conditions can be difficult. The directives of a living will usually apply to terminal conditions.

·         The professional responsibility to advise patients and clients of their alternatives is unclear. The legal liability of healthcare providers, and financial advisors, has been tested in courts with mixed results. For example, what is the liability of a provider that does not follow the directions of a living will?

·         With increasingly more complicated and sophisticated forms of medical treatment, the complete nature and scope of medical treatment and its effects are becoming more difficult to understand. Although medical professionals may be relied upon, in many cases the complete extent and nature of the treatment is not clear to everyone.

·         The effect of these relatively new healthcare powers on estate and property laws is yet to be determined. Do the property rights under a life insurance policy change, for example, if death is hastened by not doing all that is medically possible to sustain life?  This is especially germane if a policy has recently been issued and is within either the period of contestability or within the context of a suicide clause.


What did we miss? With respect to these issues; the financial planner is well advised to stay abreast of the law in the state in which he or she practices and to consider these issues when making client recommendations. Otherwise, he or she should refer the client to a lawyer who does. Should financial advisors even become involved in this issue? If not – why not; and if so – to what extent?



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