Catholic Estate Planning: Directives in Health Care Powers of Attorney
- “Is anyone among you suffering? He should pray…Is anyone among you sick? He should summon the presbyters [priests] of the Church, and they should pray over him and anoint him with oil in the name of the Lord, and the prayer of faith will save the sick person, and the Lord will raise him up. If he has committed any sins, he will be forgiven.” (Jas. 5:14-15)
Often, Catholics forget that one important aspect of an estate plan is to order their affairs according to the mysteries of faith. Although most people have a Will or Trust, and Powers of Attorney (Health, Mental Health, and Financial), some Catholics may not understand how they can adequately express their faith in an estate planning document.
How does Canon Law and the Catechism apply to a Power of Attorney?
In Arizona, a person 18 years or older can execute a health care power of attorney to appoint an agent (surrogate decision maker or proxy) to make medical decisions when the person is incompetent or unable to make or communicate a health care decision. (See A.R.S. §36-3221). Of all legal documents, it is the health care power of attorney that protects the life and dignity of a person if the document vests legal authority to make medical treatment decisions in a trusted fiduciary or family member who will follow a person’s directives.
Indeed, the Catechism of the Catholic Church (CCC §2278) considers this issue concerning the administration of medical treatment head-on because the Church teaches that medical,
- “ …decisions should be made by the patient if he is competent and able or, if not, by those legally entitled to act for the patient, whose reasonable will and legitimate interests must always be respected.”
Except for mental health care decisions that may require institutionalization, all medical decisions for an adult who is incompetent, or unable to communicate a medical decision, can be controlled by a health care power of attorney (A.R.S. §36-3223). This same document can also include express provisions requesting, among other actions, to receive the sacrament (mystery) of anointing of the sick. The Holy Catholic Church emphasizes this same point in the Code of Canon Law § 1006, which states, “The sacrament [of anointing of the sick] is to be conferred upon sick persons who requested it at least implicitly when they were in control of their faculties.”
Thus, by including a faith-based directive in a power of attorney, an individual can reasonably ensure the sacrament of anointing of the sick will be provided during a period of illness, near death, or even soon after death. (See Canon Law §1005 which states, “This sacrament is to be administered when there is a doubt whether the sick person has attained the use of reason, whether the person is dangerously ill, or whether the person is dead”).
What about Mental Health Treatment?
In contrast to a health care power of attorney, and in the absence of a court order, a mental health care power of attorney (drafted pursuant to A.R.S. §36-3282) is required to admit an individual to an inpatient psychiatric facility licensed by the department of health services if medically necessary. For a Catholic who wishes to protect his/her free exercise of religion, it is imperative to include in the mental health care power of attorney specific language that directs, in addition to receiving the anointing of the sick, a request to receive the sacraments of penance and Communion. The reason being is that Arizona law protects individuals from the abrogation of their civil rights and their rights to privacy in accordance with A.R.S. §§36-506 and 36-507. Thus, if a person includes an unambiguous faith based directive in a health care or mental health care power of attorney, then the individual may have a reasonable assurance and a greater chance to have the directive enforced, (and if necessary, through counsel obtain a court order or injunction to enforce the directive pursuant to A.R.S. §36-3206). For more information about the content of this article, or if you have questions about your estate planning, contact the attorneys at Mesch Clark Rothschild at (520) 624-8886 to schedule an appointment.