A little problem with a common form
December 1, 2017
Forms can be helpful. And dangerous.
Back in the days when I did a lot of trial work, I encouraged the court system to develop forms that people could use for simple matters. I saw a lot of folks who needed some form of relief, but couldn’t afford thousands of dollars to retain an attorney. Forms for simple things like filing a motion in a family law or probate case made a lot of sense.
And I still believe in that. However, there is a downside to the use of forms. If you try to use a legal form, and you don’t understand how to use it, or you don’t read the instructions carefully, or the form is not well thought-out, it can cause a lot of problems.
Take, for example, the statutory version of the Advanced Health Care Directive found in Alaska law. The version set out in the statutes is optional, and if you don’t like it you can use any different form you want. However because it is readily available, and it is listed in the statutes, a lot of people fill out this particular version.
So here is a fun conversation I get to have every once in a while. I am talking with a new client, and at some point the conversation rolls around to health care directives. I tell him that he needs to have one. He tells me that he already has one in place, and is confident that it does everything he wants it to do.
“Do you mind if I take a quick look at it?” I ask.
“You can if you want,” he says, “but we really don’t need to rewrite it. I already filled it out and signed it. This does what I want”.
I pick it up from across the desk, and quickly flip to a few pages in. I can go through the rest of it later, but first I need to show my client the part which, I will wager dollars to donuts, is not what he intended.
(For younger readers, dollars to donuts was an old expression which meant betting something valuable against something much cheaper. It’s from back when a dollar could buy a lot of donuts. I should probably stop using the term, given that donuts run at least a buck-fifty now. Anyway, I’m getting off topic. Where was I?)
I find what I was looking for. “So,” I say to him, “do you want the person you have named as your agent here, to be able to put you in API for up to 17 days without a hearing?”
He sputters a “No way”, or something similar.
“Do want this person to be able to force you to take psychotropic drugs that you don’t want? What about putting you through electroconvulsive treatment, like in ‘One Flew Over the Cuckoo’s Nest?”.
At that point I usually get not only a ‘no’, but probably a ‘no’ preceded by a choice expletive.
“Well,” I point out, “that is exactly what you have chosen.” And then when he denies having chosen that, I show him.
You see, the statutory version of the Advance Health Care Directive has a little problem. When they were putting this form together, some years ago in the Legislature, they decided that it made sense to put the power of attorney for health care decisions (the part where you say who is going to make medical decisions if you can’t make them yourself) into the same form as what they used to call a ‘living will’ where you talk about what kind of decisions should be made in some of the more difficult end-of-life situations.
So far, so good, but then they went a little crazy. Like a chef who starts throwing things into the soup and then can’t stop himself, they started putting more and more statutes into this one form. They put in an organ and tissue donation section, which made at least some sense. But then they put in the Mental Health Power of Attorney, which didn’t make any sense.
The old statutory form for a Mental Health Power of Attorney was something that would only be used in the limited situations in which someone was temporarily lucid enough to realize that he or she needed to have somebody else make critical decisions, because he or she was suffering from a significant psychiatric disorder. So, for instance, somebody who needs medication for schizophrenia, realizing that she might at times stop taking the meds, might designate a trusted person to intervene. Or someone who is subject to the highs and lows of bipolar disorder, might designate someone to step in before he causes himself harm.
This sort of thing is rarely an issue for somebody who goes to an attorney for estate planning.
Still, there would have been little harm but for one little technicality. The statutory form, in the instructions which, typically, nobody reads, says that “if you are satisfied to allow your agent to decide what is best for you in making these mental health decisions, you do not need to fill out this part of the form”. In other words, if you leave that part of the form blank, you have authorized your named agent to subject you to psychotropic drugs, electroconvulsive treatment, and up to 17 days in a mental institution.
When I first noticed this problem, when they came out with this law back in 2004, I figured it would be at most an occasional issue, because most people would check the boxes saying “I do not consent” and then it wouldn’t matter. In reality, my experience is that most people leave that section blank, but think they have not consented to those very serious psychiatric treatments.
There are a lot of other problems with this particular form, but that is the one which people most commonly get wrong. But then, there are potential problems with a lot of different legal forms. The best advice I can give you, if you decide to use a form, is to read the instructions very carefully. Better yet, when you finish, run it by somebody who is familiar with it, before you sign.
Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. I keep telling you guys this.