Attorneys

If you are facing major surgery, there are a variety of legal issues that you should consider. First, you may have questions about your ability to make healthcare and other important decisions should you become incapacitated or otherwise unable to make such decisions. In particular, you may have strong feelings about issues such as being kept alive by artificial mean, or about organ donation, that you want to have carried out if you are physically and/or mentally unable to make those decisions. By taking the time to execute some simple legal documents, including advance directives such as living wills and durable powers of attorney, you can ensure that your wishes are respected in the event that you are unable to make major decisions following major surgery.

 

Furthermore, undergoing major surgery can also raise legal issues related to payment of your medical bills, medical insurance coverage for your surgery, and taking an extended leave of absence from your job in order to recover from your surgery. By getting your financial and legal affairs in order prior to any planned major surgery, you can minimize the difficulties that you might face with regard to these issues following surgery, and focus solely on your physical recovery.

If you are facing major surgery, one of your primary concerns may be about making decisions regarding your healthcare, particularly if you are incapacitated or too ill to make your own decisions. As a general rule, you have the right to make all of your own healthcare decisions, including the decision to refuse a particular medical treatment or procedure. However, if you become unable to make healthcare decisions for yourself, you can designate a person or persons to make those decisions for you, and specify how you want certain healthcare decisions handled, simply by planning ahead and executing advance directives. The two most common types of advanced directives are living wills and durable healthcare powers of attorney, which can be separate legal documents, but which can also be combined into a single legal document in most states.

 

Living wills are legal documents that specifically spell out what types of procedures and/or treatments that you want or don’t want done for you, in the event that you are terminally ill, permanently unconscious, and otherwise incapacitated to make decisions at the time that they must be made. For instance, some common provisions of living wills include “Do Not Resuscitate” orders, i.e. that you don’t wish to be kept alive by machines if you are unable to live on your own, and directions regarding the use of artificial sustenance through feeding tubes, to keep you alive when you are unable to physically eat or drink due to your medical condition. If you make these decisions prior to the time at which they may come into play in your life, then your healthcare providers will be able to adequately carry out your wishes. 

On the other hand, a durable healthcare power of attorney is a legal document that designates a certain person or persons to make some or all healthcare decisions for you. You can limit the ability of your designated power of attorney, or agent, to make only certain healthcare decisions for you, or you can execute a very general document that permits your agent to make all healthcare decisions for you as they arise. In most cases, you can include decisions from a living will in the same legal document as a durable healthcare power of attorney.

 

 

If you should become incapacitated, and are unable to make major decisions, aside from healthcare issues, you can choose whom you want to be able to make those decisions for you by using certain tools to plan ahead. One such tool is a durable power of attorney, which is a legal document that allows you to name a person or person(s) to make certain decisions for you, or to act as your “agent”. Some durable powers of attorney are very specific, in that they only permit your agent to take certain actions on your behalf. Other durable powers of attorney, which are commonly referred to as general powers of attorney, cover almost all situations where an agent would need to act on your behalf, including all financial matters. 

 

Generally, a durable power of attorney becomes effective when you sign it. However, you still have the right to act on your behalf, even if a durable power of attorney is in effect. If you do not want a durable power of attorney to become effective until you are incapacitated and/or unable to make decisions on your behalf, then your durable power of attorney document can be written to accommodate your wishes, which is often called a “springing power of attorney.” 

 

If you receive Social Security benefits, however, even a general durable power of attorney will not permit your agent to handle your Social Security checks. Instead, you must sign a special document through the Social Security Administration that allows you to designate another person as your representative payee, which gives him or her the legal authority to take all necessary actions with regard to your Social Security checks. 

 

Every hospital or medical care facility that participates in the federal Medicare program must ask you if you are an organ donor. If you are an organ donor, you may carry an organ donor card, or, in some states, your wishes regarding organ donation may be listed on your driver’s license and/or state identification card; in this case, the hospital must make a copy of your card for your medical records, as well as any other legal document that sets forth your wishes regarding organ donation, such as a living will or other type of advance directive. If no such instructions exist, and you are unable to make decisions about potential organ donation, the hospital must ask your next of kin whether your organs should be donated. Therefore, in addition to making your wishes known through organ donor cards and/or advance directives, you should also advise your closest family members regarding your stance on organ donation.

With every major surgery comes the risk of serious complications, disability or incapacity, and even death. As a result, it is essential that you prepare for your surgery by taking steps to ensure that your legal and financial affairs are in order, so as to minimize the burden on your loved ones, and to ensure that your assets are distributed as you see fit.

Reviewing your will on a periodic basis is a necessary task, particularly when you are facing major surgery. By consulting an estate attorney, you can best determine how to preserve your assets, minimize the impact of taxes, leave your assets to the heirs that you choose, and avoid family disputes regarding your estate. There are a variety of estate-planning tools that can help avoid probate court altogether, which saves a great deal of time and money for your loved ones. For instance, you might consider whether it would be beneficial to place your assets in a trust with certain named beneficiaries, so as to ensure that your estate remains outside of probate. A trust can work in many different ways, depending on your situation and your wishes, and you can very specifically bequeath certain assets to certain heirs, under specified conditions that you choose.

Likewise it is important to periodically review and update your named beneficiaries for all life insurance policies, retirement plans, and trusts that you already own, so that your assets will go to the person(s) that you desire. It is all too common for an older person who has been married, divorced, and remarried (even multiple times) to fail to update their beneficiaries as their lives change, which can result in quite a legal mess in the event of an unexpected death.

If you know in advance that you will be undergoing major surgery, then you have a good opportunity to plan for payment of your medical expenses, which are likely to be extensive, no matter what your situation. If you have private medical insurance coverage, you should take steps to ensure that you are using in-network doctors and medical facilities in order to minimize your out-of-pocket medical expenses, as well as your insurance coverage in general. Furthermore, if you are likely to have substantial out-of-pocket medical costs, you might explore whether your employer has a employee flex benefit plan or medical savings account, both of which are vehicles to allow you to use pre-tax money to pay qualified medical expenses. Finally, many insurance policies require that you receive pre-certification or pre-approval in order to be admitted to a hospital and/or undergo expensive medical procedures. Therefore, it is essential to contact your insurance company and take the necessary steps in order to ensure that your medical bills are fully covered.

If you must take an extended period of time off from work as a result of your major surgery, you have several options in terms of retaining your job while still taking the time off that you need to recover. First, you can use any accrued leave time that you have available at your job so that you have as much paid time off as possible. If, however, as is often the case, you need to take an extended leave period beyond the amount of leave time that you have accrued, you may be eligible to take up to 12 weeks of leave under the Family and Medical Leave Act, after you have exhausted your available paid leave time, and if your employer is subject to the Act. While you may have to provide medical certification to your employer upon request about your need to take an extended leave period, your job is protected for at least a 12-week period of time.