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The Health Care Proxy: Before Death
See ye that I alone am, and there is no other God besides Me: I will kill and I will make to live.
— Deuteronomy 32:39
Since the greatest gift we have from God is life itself, it makes sense to start with the estate planning document that deals with end-of-life issues — the Health Care Proxy. Unfortunately, this document goes by many other names, including "Advance Directive," "Medical Power of Attorney," and "Designation of Health Care Surrogate." Yet the common element of all of them is the establishment of an agency relationship. This means that if you are too ill to communicate your health care wishes to your doctors, your agent steps into your shoes to speak for you.
Though your wishes could be transmitted to your agent orally, the better practice is to write them down. At this point, it important to distinguish the Health Care Proxy from the Living Will. While the Living Will also contains written wishes concerning care, it does not create an agency relationship. For this reason, the Health Care Proxy is the far superior approach. With today's fast-changing technology, it is much better to appoint someone to decide what to do based on circumstances as they present themselves in the future than to attempt to predict those future circumstances now and try to instruct accordingly.
Who should be your agent and backup agent? Choose people who are not only prudent decision makers but who also possess a healthy dose of fortitude. Catholicism's teachings on the value of suffering and on the value of human life (no matter what its quality) are very much at odds with today's medical establishment. You may need your agent to resort to the courts to get your doctors to comply. A direction to your agent to take legal action to protect your rights and best interests is probably worth including in your document.
When it comes to health care instructions, the health of your immortal soul takes first priority. It is a dogma of the Church that only those dying in the state of sanctifying grace have a claim to the inheritance of heaven. Thus, requesting the last sacraments in a Health Care Proxy is essential. Naming the priest whom you would like to administer the last sacraments is also a good idea (with a backup named too). Including information on how to contact the priest (his address, phone number, etc.) also makes sense.
Women of childbearing age should include an instruction in their Health Care Proxies to maintain their own lives for as long as possible for the sake of the child. Numerous women who have been clinically brain dead have given birth months after being so diagnosed. A request for baptism and confirmation for the child in case of complications is also a very good idea.
Asking to be provided with sacramentals (crucifix, rosary, enrollment in confraternity of the brown scapular, etc.) also makes sense. Requests for assistance in gaining the plenary indulgence at the hour of death and for prayers of family and friends for the grace of final perseverance are also highly recommended.
When it comes to the body, suffering and pain-relieving medication should be addressed. A statement in a Health Care Proxy offering up one's suffering in satisfaction for one's sins, the sins of others, and other worthy intentions (the conversion of family members, the relief of members of the Church Suffering, etc.) is a great idea. In this way, you will avoid squandering illness.
It is okay to request heavy doses of pain-relieving medication (such as morphine) in a Health Care Proxy so long as the medication is not being used as a cover for euthanasia. With that said, pain-relieving medication should be moderated for the sake of worthy reception of the last sacraments. For the more heroic who wish to better follow the example of our Lord's passion, a request for minimal or no pain medication may be appropriate.
Of course, a request for euthanasia (suicide) is totally out of bounds. There is no dignity in a death that puts one in hell forever, and there is no compassion in encouraging people to choose eternal over temporal suffering.
At this point, it would be good to distinguish between active and passive euthanasia. Most of us recognize the wrongfulness of active euthanasia, such as lethal injection (or death by commission). But under certain circumstances, passive euthanasia (or death by omission) can be just as wrong. One of the best examples of this is the case of Terri Schiavo. Proper instruction in a Health Care Proxy should guard against both. You should anticipate the possibility that your situation may be too hard for your agent to handle. You should include a provision instructing the agent to consult a good moral theologian in that case.
For those interested in organ donation, brain death (whether partial or full) is false death and should not be used as the criterion of when the soul has left the body. The onset of putrefaction remains the true criterion. Cardiac death, circulatory death, and other inventions should also be avoided as criteria. Many good Catholic authors have written on this. They point out how false brain death is being used to rationalize murder so that vital organs (hearts, kidneys, livers, etc.) may be harvested with impunity. Accordingly, explicit direction in your Health Care Proxy against organ donation is best. Short of that, organ donation should be limited to nonvital organs. You can direct that the donated organs must be used only for purposes that the Church has approved.
Closing out this chapter, here are some additional suggestions for the Health Care Proxy:
1. Express a preference for death at home rather than in an institution.
2. Reject treatments derived from organs/tissues of aborted children.
3. Reject embalming. This insult to the former (and future) temple of the Holy Ghost is not required by law in most cases.
4. Reject autopsy (for the same reasons).
In the next chapter, we will deal with funeral and burial instructions, including suggestions for ensuring those instructions are carried out.CHAPTER 2
The Health Care Proxy: After Death
And now, children, hear me, and do not stay here: but as soon as you shall bury your mother by me in one sepulchre, without delay direct your steps to depart hence.
— Tobias 14:12
In the last chapter, we focused on the time leading up to and immediately following death. In this chapter, funeral and burial wishes will take center stage followed by some ideas on enforcement.
At the outset, it important to note that a last will and testament is not the best place to record funeral and burial wishes. By the time that the "reading of the will" occurs, it is usually too late. And since the authority of your agent under your Health Care Proxy terminates at your death, the Health Care Proxy is not a good choice for recoding your funeral and burial wishes either. Rather a separate writing is the best approach.
What are some wishes worth mentioning? Clearly, your desire for a Requiem Mass should be first and foremost. Give all of the details you see fit to specify. These could include the location of the Mass, the type of Mass (High Mass, Missa Cantata, Low Mass), the type of music for a High Mass or Missa Cantata (Gregorian chant or polyphony), the priest to celebrate, the pallbearers, and requests for additional Masses (seventh day, thirtieth day, one-year anniversary of death or burial, and/or Gregorian Masses).
You may also wish to specify the type of casket you want. If cost is a concern, consider obtaining a very simple casket from a religious order. Requesting a spiritual bouquet of Masses for your soul rather than flowers can be a good idea. Listing the Catholic cemetery you wish to be buried in also makes sense.
Be sure to mention your opposition to cremation, no matter what the alleged benefits are. In doing so, think about citing past condemnations of the burning of corpses, including those of Pope Leo XIII ("detestable abuse"), the 1917 Code of Canon Law ("reprobated"), and the Holy Office ("barbarous practice").
If you are concerned about your funeral and burial wishes being ignored, here are a few suggestions. First, explore whether a "Designation of Funeral Representative (DFR)" is available in your state. A DFR allows you to confer on your appointee the authority to make decisions about your funeral arrangements and the disposition of your body. The appointee need not be a family member. Therefore, if none of your family members are on the same page as you with respect to your funeral and burial wishes (or if some are but live too far away), you can appoint a priest or a trusted friend as your representative.
Second, since all things obey money, use your will to disincentivize your heirs from disregarding your wishes by staking a portion of their inheritance on it. This can be done with or without a DFR (or its equivalent). To make this work, however, your heirs must be notified prior to your death of both your wishes and the provision in your will backing those wishes up.
Here is an example.
If in the judgment of Fr. _______, my funeral and burial wishes were not satisfactorily complied with, $___________ shall be deducted from each of my heirs' inheritances. The aggregate of such reductions shall be distributed to ___________Catholic church for Masses to be said for ___________. The decision of Fr. ___________ in this matter shall not be and binding on all concerned. I recognize that if Fr. ___________ is affiliated with ___________ Catholic church at the time his decision is to be made, a potential conflict of interest may be created. I consider such a conflict of interest to be in appearance only. I fully trust that Fr. ___________will make an impartial decision.
In the next chapter, we will look at the Durable Power of Attorney and some provisions that might be included in it.CHAPTER 3
The Durable Power of Attorney
He made him master of his house, and ruler of all his possession. That he might instruct his princes as himself.
— Psalm 104:21–22
In this chapter, the document that complements the Health Care Proxy takes center stage, namely the Durable Power of Attorney. Where the Health Care Proxy dealt with the care of your person, the Durable Power of Attorney deals with the care of your property during your incapacity.
The arrangement recorded by the psalmist is a good example of a power of attorney. While mentally competent, Pharaoh designated Joseph to "stand in his shoes" when it came to the management of Pharaoh's property (all of Egypt). If Joseph's authority had been deferred until Pharaoh's incapacity, this would have been a springing power. However, Joseph's authority was immediate upon his accepting the appointment. This made it an immediate power.
Another aspect of the arrangement was the time limit on Joseph's authority. What if Pharaoh became incapacitated sometime after the appointment was made? Would Joseph's authority endure? We are not told. However, if Joseph's authority did endure after Pharaoh's incapacity, it would have been a durable power of attorney. If not, it would have been a nondurable power. However, even if it was durable, Joseph's authority would certainly have expired at Pharaoh's death. The same is true today.
When it comes to estate planning, immediate Durable Powers of Attorney are generally preferable to springing durable powers. By appointing a master and ruler of all of your possessions in advance of your incapacity, your loved ones will not need to go to probate court (sometimes called a living probate) to get the authority to instruct your financial institutions and others on your behalf.
Here are some recommendations. First, be sure to include among the standard authorizations a specific power to continue charitable giving. Without this, all giving — whether to charities or to family members — has to stop when you are incapacitated. For example, if you have been a longtime supporter of the poor and if you want your support to continue through your incapacity, you must say so in your Durable Power of Attorney. If you do not, the historical record of your generosity will do nothing to help.
Here is an example of how such a specific charitable giving power might read.
I authorize my agent to make charitable gifts as my agent believes I would make if I were able. I specifically give my agent the authority (i) to make qualified charitable distributions from one or more of my traditional IRAs to one or more qualified charitable organizations and (ii) to accelerate testamentary charitable bequests (including testamentary charitable trusts or gift annuity arrangements) if this acceleration would be of greater benefit to me or my heirs.
Second, if authorization for giving to family members will be granted, your agent might be tempted to make transfers to others to make you look "poor on paper" and qualify you for Medicaid. You can head off that temptation with this provision.
The authority that I have given in this instrument to make gifts to my family members includes the authority to engage in so-called "Medicaid planning" but not for the sole purpose of preserving my heirs' inheritances if I am otherwise able to afford my own care. Rather, such planning shall only be undertaken to enhance the quality of my care or to protect my spouse from impoverishment, the preservation of my heirs' inheritances being only an incidental consequence thereof.
In closing, consider whether the following legal estate planning maneuvers may also present some moral problems:
1. arranging the non-probate, non-living trust transfer of assets to heirs to evade the claims of legitimate creditors who, under the law of your state, may only satisfy their claims out of your of your probate and living trust estates;
2. claiming a valuation discount for gifts of business interests to family members on the grounds that (i) there is no market for the interests (though their sale is never intended) and (ii) the recipients cannot exercise control (though control by the family as a whole is still maintained); and/or
3. setting property aside in so-called "asset protection trusts" so that the assets held by the trust are available to you but not to your creditors if you did something wrong.
This concludes our discussion of the Durable Power of Attorney. In the next chapter, we will examine the last will and testament, starting with some suggestions for an appropriate Catholic preamble.CHAPTER 4
Last Will and Testament: Catholic Preamble
For where there is a testament, the death of the testator must of necessity come in. For a testament is of force, after men are dead: otherwise it is as yet of no strength, whilst the testator liveth.
— Hebrews 9:16–17
In the last chapter, we covered the Durable Power of Attorney. That instrument and the Health Care Proxy only have force when you are alive. After your death they have no strength because the authority of the appointed agents expires. Now, however, we will turn our attention to the legal instrument that takes over upon death, namely the last will and testament.
In past times wills covered only the disposition of real property (e.g., land, residences) and testaments covered only the disposition of personal property (e.g., jewelry) at death. Nowadays the distinction is no longer made. In fact, except in the heading, the word testament is rarely used in a will.
It is important to distinguish other documents that might also include the word will in their names. For example, we saw that Living Wills are concerned with your health care during your incapacity, not your property after your death.
Ethical wills are gaining in popularity. Their focus is the transmission of spiritual goods at death (such as advice on how to live a good life, hopes and dreams for the future, explanations of past events, expressions of love, requests for forgiveness, etc.). Although this can be done within the will proper, it is more commonly done in a separate document (or audio or video recording).
In her Mystical City of God, the venerable Mary of Agreda records the last will and testaments of our Lord and our Lady.
What should you say in your will? For an excellent start (sometimes called the preamble), you can declare your Catholic faith. We have some great examples from the past, including the following two:
Catholic Preamble for Will — Example 1
In the name of the Very Holy Trinity, Father, Son and Holy Ghost.
I leave my soul to God, my creator; I pray Him to receive it in His mercy, not to judge it according to its merits but according to those of Our Lord Jesus Christ who has offered Himself as a sacrifice to God His Father for us other men, no matter how hardened, and for me first.
I die in communion with our Holy Mother, the Catholic, Apostolic, Roman Church, which holds authority by an uninterrupted succession, from St. Peter, to whom Jesus Christ entrusted it; I believe firmly and I confess all that is contained in the creed and the commandments of God and the Church, the sacraments and the mysteries, those which the Catholic Church teaches and has always taught.
I pity with all my heart our brothers who may be in error but I do not claim to judge them, and I do not love them less in Christ, as our Christian charity teaches us, and I pray to God to pardon all my sins.(Continues…)
Excerpted from "Estate Planning for Catholics"
Copyright © 2017 Salvatore J. LaMendola.
Excerpted by permission of AuthorHouse.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
Chapter 1 The Health Care Proxy: Before Death, 1,
Chapter 2 The Health Care Proxy: After Death, 6,
Chapter 3 The Durable Power of Attorney, 11,
Chapter 4 Last Will and Testament: Catholic Preamble, 16,
Chapter 5 Last Will and Testament: Guardians, 22,
Chapter 6 Last Will and Testament: Pre-Residuary Gifts, 26,
Chapter 7 Last Will and Testament: Residuary Bequests for Children, 32,
Chapter 8 Last Will and Testament: Residuary Bequests to Charity, 38,