Life Planning in JALISCO, including advance care and 'end-of-life' docs

Abrria posted under another topic to which I responded. Both of our posts are below. I moved those posts to start a new thread under 'legal.' Thanks for your feedback, comments and questions.....or adding new material.

FILOLI wrote with this as the topic:
End-of-life presentation (7/15/LCS/Health Week) discussion points.

Abrria wrote:
I attended a presentation on 7/15, at LCS about the Jalisco law (?) (not sure if this law is only for Jalisco or a Federal one) about what we would call in the US, "Advanced Health Care Directive." I was very impressed by the work that was put into this. I would encourage people to look at this web site because it does deal with the medical issue that someone can be authorized to make health care decisions if you are incapacitated. Web site is: www.lakesidelifemanagement.org

IMHO those of us who live alone should have people check in on a regular basis to make sure we are OK. I feel that it is important to make available the names and phone numbers of those people who should be contacted in event of an emergency. It just makes things so much easier if our friends have this kind of info.

ABRRIA Wrote:
I just received an email that some (?) of the information presented at LCS was incorrect. As soon as I find out what the corrections are I will post them.

FILOLI WROTE:
I very much welcome comments and more as this is an up learning curve on this topic!!

Lots of discussion points on that July 15th presentation.
Some good, valid, and usable information; but with other stuff that is misleading, incorrect and confusing. A disclaimer was published on the LCS website and might still be there. I think it was to run for a couple of weeks.

First, the law is MX federal legislation. You can google "Decree reforming and adding to the General Health Law of Palliative Care Matters (DOF from 05 of January 2009).' Google will provide an English translation option. You can then verify that it is federal legislation by going to the bottom of the last page.

This is an important starting place to understand if the law is federal or Jalisco-specific because federal law supersedes state law. There was a lot of confusion from the very beginning because the authors published ads for their presentation referring to the "Jalisco Mexican Legislation....", and published an article in one of the periodicals that goes on to say the "newly presented law was undertaken by the Jalisco Mexican legislation."

This confusion was raised on another webboard and the authors still did not seem to get the idea about the importance of knowing the difference between federal and state law. (I was not sure if I could specifically note which periodicals or webboards...so if anyone wants to know, please post or send me a note and I'll give you the exact references.)

Next discussion point(s). The authors title their document "A Guide to Advance[d] Care Planning for Foreigners in MEXICO," without making any distinction for Jalisco. It's important to understand that each Mexican state has it's own distinct state laws (just like in the US), even though the MX health care legislation is federal and supersedes state law.

Also, the authors state in their ads, including in the LCS health care week ads, that the new legislation provides for a "medical power of attorney." In a published article, they say that a "durable power of attorney for medical decisions" can now be chosen for expats living in Mexico. A statement of authorization is neither a medical power of attorney nor a durable power of attorney.

It was January 2010 when those of us working on these issues, including the authors, saw the MX federal legislation in print. By that time, Luis Ramos (Notario 2) had already proposed as of last summer a 'statement of authorization, that could include care directives.'

The reason for developing an Authorization/Directives for Care was to have an alternative document to work-around Jalisco's laws in which all powers of attorney expire in 5 years and don't recognize 'durability' (which means that at the point of permanent mental incompetency or a persistant vegetative state, the power of attorney becomes invalid (you can check with Luis Ramos, Lic. Sergio Macias in Chapala, or any other local attorney).

The other issue with that is that at the of the 5 year expiration, you must be mentally competent to get a new power of attorney (this could be a problem as we age and should happen to develop problems with alzheimers, have a stroke, etc.).

Why understand the distinction between the Mexican states? While Jalisco doesn't recognize 'durability,' there are 5 other MX states that do. They are Morelos, Mexico, San Luis Potosi, Guanajuato and Coahuila (which also specifically has a durable power of attorney for health).

The Authorization fits right in line with the new federal legislation (which does not name any specific documents) which states, "Designate a relative, legal representative or a trusted person for the event, with the progress of the disease, is prevented from expressing their will to do so on their behalf" [this is translated from Spanish; Chapter II, Article 166, Bix 3, Paragraph X]. It goes on to state "Any person of legal age, in full possession of his mental facilities, may at any time, regardless of their condition, express their will in writing before two witnesses, or not receiving any treatment, if that were to suffer an illness and be in a terminal situation [diagnosed with 6 months to live] and not be able to express that at any time" (Article 166 Bis 4).

So, the good part is that the Notario was right on target and the Authorization/Directives for Care can serve as the document that is allowed under the federal legislation.

Here's where some of the questions come in. The legislation is relatively new and has not been tested in the Mexican court system (per Raoul Rodriquez who has done a little research on this) and has not been run through private hospitals in Guadalajara that want their patients to stay as long as possible and remain 'hooked' up (there's more than one story lakeside on this issue).

There's still lots of education to do because the MX law has been 'curative care,' not palliative care. The Authorization does not appear to be legally binding (which means that if the doctors or hospitals don't adhere to the patient's requests, nothing happens). The authors note several times in their paper that the Authorization is "not legal" and Erik Slebos, who is also working on these issues, noted on another webboard that there is no provision by the legislation if the doctors do not adhere to the wishes of the patient.

The Authorization, however, does not expire and it is still valid when the person cannot make decisions for themselves WHEN IN A TERMINAL CONDITION with 6 months to live (according to the legislation). Will that be the situation for all of us? Who knows!???

IS A DURABLE POWER OF ATTORNEY FOR MEDICAL DECISIONS needed? That's a really good question to ask an attorney who understands the 'durability' available in the other 5 MX states. Sergio Macias, along with Dr. Garcia, did a presentation at LCS on July 8, 2005, on Living Wills and Durable Powers of Attorney (you can find this on the LCS website under Living Wills). Lic. Macias indicates that durable powers of attorney from other MX states are valid in all of the MX states.

Durable powers of attorney may become useful for someone in an auto accident, or a variety of things where they cannot speak for themselves and need someone to act on their behalf for medical decisions, and they have not been diagnosed as terminally ill, with 6 months to live. The discussion then moves to the question, do we then need to have an a friend or someone else who can act on our behalf??

Do we need to develop separately a legally binding 'durable power of attorney,' with care directives (living will) that could cover any point in time, including the last 6 months of life, and any situation in which we cannot speak for ourselves?? These things are still left up-in-the air with the new Mexican federal legislation.

Many of us live in Jalisco full-time and plan on staying; this is home! Can we get access to durable powers of attorney for health or anything else?? Yes, we can. There are two ways.

One is to get the documents made in one of the MX states that recognizes durable powers of attorney (see the paper 'Living Wills' or talk directly with Sergio Macias). Lic Macias states that the documents are legally binding in all of the MX states and he has legal contacts in each of the states to which he can refer.

The other way to use American (or Canadian) documents from your state of origin. They have to go through an 'apostille' (Canadians have to go through their consulates instead to 'certifiy' documents) process (check on-line for information). It's easy, usually inexpensive and can be recognized here (I have, for example, a US durable power of attorney for financial matters (apostilled and held at my financial institution in Ajijic) and a US durable power of attorney for health (which includes a living will), held by my Mexican general physician. As a back-up, I will also do an Authorization, but will not depend on that alone.

Filoli

Excellent info Filoli. Thanks for the contribution.

Bob

I have more to add....and the idea is to bring some further clarity to the materials from the July 15th presentation and some additional changes I see being made on the website document.

One error on the July 15th advance[d] directive document is that wills in Mexico expire in 5 years. This is incorrect (any of you readers have Mexican wills for Jalisco or other states? Any of them expire in 5 years??? No.) This may have been corrected on the current on-line document.

The current on-line document is still 'absent' any clarity on 'durability.' They say that you can get a medical POA apostilled and used here. The document needs to be a "durable power of attorney for health" to be valid for a permanent mental incapacitation (from stroke or a zillion other reasons) (one US site that has a lot of state-specific information is NOLO Press, <www.nolo.com>).

They still completely ignore the fact that 5 Mexican states offer durable documents that are supposed to be valid here in Jalisco. Perhaps this is because they are only relying on one notario who may not have experience in this area. If you are interested in this option, Sergio Macias in Notario No. 5's office in Chapala is more knowledgeable.

Also in the July 15th document, they suggest opening a joint bank account for taking care of your finances when you cannot. Some glitches with this is that how much money do you have to keep in the joint account??? How much is enough? What happens if it runs out?

The other person has free access to the account, unless you arrange to have 2 or 3 signers on the account to access any of the money. And, that's possible. How practical is that if money is needed quickly??? The other glitch is in depending on just one person to pitch in when needed; will they be there at that point and time??? If it is someone NOB, can they be lakeside soon enough??? Should there be several people on the joint bank account; NoB and locally??

Another option is a durable power of attorney for finances. Multiva, Lloyds, and Bancomer all will allow you to have a NOB apostilled 'durable power of attorney for finances' on file to be used if necessary to access your funds. Or, you can have a durable power of attorney from another Mexican state to authorize someone to access your funds. You can include more than one name of a person(s) locally, and include person(s) from NOB as well. To access the money, they will have to show ID at the financial institution. How they account for your money is whatever arrangement you make with them. Will they need some oversight?? Maybe?

In either case, you must have a person(s) that you trust and know will do what you have requested (we have all heard lots of lakeside stories about older people being 'taken' when they were struggling to make their own decisions, or could no longer make their own decisions.)

Questions, comments, your 2 cents?
More to come, FILOLI

The July 15th advance directive document talks about 'identifying' a local doctor (for us that means lakeside) and having them buy-in to a the 'statement of authorization' and the 'care directives.' In theory that's a really good idea. In practice, there's another glitch.

In the communities of Mazatlan and San Miguel de Allende, there are two fairly new hospices which have 'buy-ins' as a community (and remember that Guanajuato is one of the states with 'durable' powers of attorney). The difference between those two communities and ours is that the doctors, hospitals and general community and 'connected' and basically one community. Here at lakeside, when someone gets really sick, they go to Guadalajara. Once you get to Guadalajara, you typically get a new doctor, some sort of specialist, with whom you may not have a relationship and who has not 'signed-off' or agreed to your requests for care (or, no care). In chatting with Dr. Garcia, he mentioned that this is the case lakeside, and once the patient goes to Guadalajara the arrangements they may have made with a local doctor are no longer practical.

Increasingly, specialists from Guadalajara are lakeside for a limited number of days. So, it is important to not limit your discussions about directives for care with just your local doctor. The law is fairly new and it is going to take time for doctors, and hospitals, to shift gears to the concept of palliative care.

Comments, thoughts, your experiences?
FILOLI

And, who is the 'authority?'
In the time I've been here, I've heard tales about when someone moves south, there's a 'bump up' and all sorts of other comments.

I'm now wondering if that same idea also applies to writing documents as an 'authority' on legal, and other, matters in a foreign country, where one does not speak the language, they are not attorneys in their country of origin, where you have lived a short time, about new legislation with a completely different 'cultural' direction focusing on 'palliative care' rather than 'curative care', or rather letting someone die in peace vs. keeping someone alive at all costs and not finding it necessary to include references, resources, sources, legal citations (other than one), and websites from which information was clearly 'borrowed.'

Along with the July 15th advance care doc, there's another website producing items in the same manner. While they may in the end have something to contribute, do they do us a disservice by not including the references, sources, and more for us to follow up on our own, do further reading, self-educate, or just to validate their information!!?? In the case of the July 15th doc, the authors struggled with knowing if the law they were addressing was federal or state. That's not a good sign.

For anyone who wants to follow up on their own, you can start with AARP or CARP which will lead you to many other sites. I've already mentioned Nolo Press, and gave where to find the Mexican 'federal' legislation which was the basis for this discussion.

Comments, questions, your experiences???
FILOLI

Well, the authors from lakesidelifemanagement.org are at it again. In the column The Gray Area (p. 33) of a local periodical (August 2010), one of the authors says "In Mexico, specifically Jalisco, there is no recognition of the terms Living Will or medical power of attorney."

They must not read what they are producing!! Have they forgotten the published article and ads in April, June and July stating that durable powers of attorney, medical powers of attorney, living wills, etc. are now available under 'Jalisco' law (well, actually it's Mexican federal legislation, but they did not understand that).

Actually, "In Mexico" there are 5 Mexican states that have powers of attorney with 'durability' and where you can get a durable power of attorney for health that will be recognized in the State of Jalisco (per Sergio Macias and the LCS Living Will presentation on their website). Those states are Mexico, Guanajuato, San Luis Potosi, Morelos, and Coahiula, which even has on-the-books a legal citation for a durable medical power of attorney (see Sergio Macias).

And in "specifically Jalisco," you can get a medical power of attorney (but I guess they don't know that either). The issue is that you can't get a 'durable medical power of attorney.' This magical word 'durable' remains a mystery for these two authors, and they once again have reinforced the idea that they should stick to nursing which is their professional area.

Am I the only one following any of this?? Who attended the July 15th advance directive presentation during health week at LCS? I know the room was full. No one on this webboard? Any comments, thoughts, opinions....are you actually using any of the information on the mentioned website?

The reason the room was full is because this is an important topic. It is a serious topic and difficult enough when the information is accurate. When the information is incorrect and misleading, it has lots of potential for leading people down a dark path. Now, I know that people are responsible for themselves, but what sense does it make for two authors to be so busy producing stuff that has so many problems??

FILOLI