Private Client Services Update - Advance Medical Directives: One Caveat with the New Virginia Form

Section 54.1-2984 of the Code of Virginia sets forth a suggested form of Advanced Medical Directive, which thoughtfully provides a number of options and a great deal of flexibility. A careful review of the form, with appropriate annotations and directions where permitted, should achieve the results that the signor of the Directive desires. However, there is one provision where the Agent under the Directive is authorized to 'make decisions regarding visitation during any time that I am admitted to any healthcare facility consistent with the following directions: ____________________________'. Should there be no directions, then the Agent will decide who gets admitted to the hospital or hospice room. This provision may lead to some unintended and unfortunate consequences.

In many cases, the sibling that lives near the parent is the one who is appointed agent under the Advanced Medical Directive. In a case where there is family discord involving siblings, the sibling taking care of the parent may well have some resentment against those that are not nearby and he may also feel some sense of entitlement because of the caregiver nature of the relationship. There is also the distinct possibility that the elderly parent will be susceptible to some greater degree of undue influence. Finally, it is also quite likely that in many circumstances the party sitting with the parent to review the form will be the child who is going to be holding the power.

The result could be that other siblings who come to the hospital to see their parent might be denied access. This will obviously produce distress to the siblings, but also could mean that the parent could feel some false sense of abandonment. Undue influence by the caregiver child could be greatly increased, with any financial overreaching by that child in the parent's estate plan either solidified or even open to expansion. These results could have both devastating emotional and financial results under the wrong set of circumstances.

What is the solution? Probably to take out that clause altogether and to have the medical staff at any healthcare facility permit anyone to come to the room when visitation does not pose a health risk to the patient or give that power to more than one person or to an independent party (which has its own complications relating to the accessibility of the independent party). In the alternative, where that language is left in, the form has a warning of the power that it bestows upon the Agent and the warning should be initialed by the signor at the time of execution of the Advance Medical Directive. A situation where the named executor and trustee are different then the Agent may be a warning sign for additional thought and discussion.

Robert C. Goodman Jr. is a partner at Kaufman & Canoles where he works closely with families and family businesses in generational and estate tax planning, other tax issues, family dynamics, and charitable objectives, in addition to his commercial transaction work. He is a graduate of Harvard Law School and his civic involvement includes service to Virginia Beach Vision, Virginia Beach Foundation, Eastern Virginia Medical School, EVMS Foundation, and the Diabetes Institutes Foundation.  Rob can be reached at (757) 624.3238 or rcgoodman@kaufcan.com

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances.


The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2017.

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