Our Situation
This topic is a challenge to discuss in so many ways. Many people are uncomfortable planning for their own death or long-term care. In addition, this topic requires us to strike a balance between our desire to share our experience so that others may find helpful information, and both personal and legal needs for privacy. In this post we will attempt to explain our situation and what we have looked into to remedy the issues involved.
Diana has a last will and testament in place, however that does not function as a living will. The distinction being that “while a last will directs the distribution of assets after a person’s death, a living will gives directions regarding the medical care of someone who is still alive although unable to communicate her wishes herself” (Legal Zoom). We had pursued a medical power of attorney, however Diana had not completed the process before her trip. “A medical power of attorney, also called a durable power of attorney for health care, is one type of the legal forms called advance directives. It lets you name the person you want to make treatment decisions for you if you can’t speak or decide for yourself. The person you choose is called your health care agent” (Kaiser Permanente). We absolutely recommend having a medical power of attorney and/or a living will in place, especially prior to a trip taken by any person with health issues. The legal framework for medical decision-makers does not cover the financial, and legal aspects of the issues you may run into otherwise.
Since Diana is in a coma and unable to communicate her will or needs it falls to the legal structure of where she is, in the case Portugal, to define who is allowed to make decisions for her. We have been lucky that immediate family, in this case her daughter and son were able to travel to be with her, and that they retain rights of her medical decisions.
Heirarchy for a Healthcare Proxy
In Washington State, there is a clear 9 level hierarchy for a health care proxy, they are as follows:
- Legal guardian, if the patient is a minor
- Spouse or domestic partner of the patient
- Children of the patient who are at least 18 years old
- Parents of the patient
- Siblings of the patient who are at least 18 years old
- Grandchildren of the patient who are at least 18 years old
- Nephews and nieces of the patient who are at least 18 years old
- Uncles and aunts of the patient who are at least 18 years old
- A close friend of the patient who is at least 18 years old (although special stipulations apply to this last category)
Issues that Arise Without a Proxy
In terms of immediate actionable medical care the structures in place have worked well so far. However, where trouble arises is when a patient is unable to communicate their needs, in our case she is in a coma, and there are extreme air medical ambulance bills not covered by insurance, long-term care decisions, and financial responsibilities to manage over months, if not years.
If we can’t raise the funds to bring Diana James home, then we need will have to begin making tough decisions, which may include selling her home where she lives with her daughter, who has been her caregiver for years. Once we get her home, she will most likely need round-the-clock care from an assisted living facility as well, which costs on average $5750 per month in Washington. Regardless of being in a coma, she still has bills that need paying, accounts to manage, insurance payments, etc. These decisions, while rooted in medical need, are beyond the scope of a health care agent or proxy. In these situations a guardianship and conservatorship becomes necessary. “In many states, a guardianship gives a person control over the personal, day-to-day decisions of a ward, while a conservatorship provides the authority to control another person’s financial decisions” (Legal Zoom).
Challenges Trying to Get A Conservatorship/Guardianship While Abroad
We have reached out to numerous lawyers in our region regarding a guardianship and conservatorship. The lesson has been that they are a very overworked community, with many having no room for new clients. Lawyers are of course expensive, as is the process, a basic introductory discussion with a lawyer can cost up to $550/hr. The process can take months. There are ways to self represent and file, which we will share in another post, but this is certainly a complex path, not for every one.
Our 2 main questions at this stage, with Diana still being in a coma in Portugal, and having her care giver, Megan at her side, is:
- Can we begin the process with them both being out of the country, can we even do it if just Megan was in the country?
- What special requirements and options are available since Diana is unable to communicate, or be interviewed, which is a fundamental step in the process?
None of the lawyers we spoke to seemed willing to pursue a guardianship or conservatorship until Megan and Diana are back in the country. Which is problematic, as she could be in a coma for some time, and as we are still struggling to raise the $185k she needs in her current state to get an air ambulance home, she could remain in Portugal for quite some time. During that time the financial issues, like banking, social security, paying a mortgage, insurance bills, credit card bills, managing insurance issues, etc, are all up in the air. When she does get back, the process to get legal rights to manage her assets and medical needs could still take months, leaving these issues in limbo.
Conclusion
The stress, uncertainty, and anxiety surrounding these issues begins to feel insurmountable. Please speak with your loved ones, and make sure they have a plan in place to manage their needs if something were to happen to them.