March 2013 Volume 9 Number 7

The Importance of Advance Health Planning For Your Clients and Yourself

By Nathan Kottkamp, McGuireWoods, LLP, Richmond, VA

AuthorBen Franklin wisely quipped: “In this world nothing can be said to be certain, except death and taxes.”1 Unfortunately, without a specific deadline on the death issue, most of us put off planning for it. Most of us also put off planning for healthcare crises. In fact, it is estimated that 75 percent of Americans have never taken the time to discuss their wishes or provided any written guidance to loved ones or healthcare providers in the event they are unable to speak for themselves.

Recognizing the above, National Healthcare Decisions Day (“NHDD”), April 16, exists to encourage and empower all Americans to take the simple steps to be ready for the unexpected, to provide the gift of guidance to their loved ones, and, ultimately, to be sure that patients get the care they want and need if they are ever unable to speak for themselves. Lawyers of all sorts can play a significant role in the effort to highlight the importance of making advance healthcare decisions and to provide tools for making these decisions. Specifically, for healthcare, family, trusts and estates, and elder lawyers, this is an issue of great importance to clients.  For any other lawyers seeking pro bono experience or an opportunity for public speaking, NHDD offers that, too. 

We recently witnessed a media firestorm over “death panels” during the debate over health reform. Nearly 10 years ago, the Terri Schiavo case gripped the nation. And roughly twenty years ago, the case of Nancy Cruzan (whose case, like Schiavo’s, involved a request to remove a feeding tube) went all the way to the U.S. Supreme Court.2 The Cruzan case also led to passage of the Patient Self-Determination Act and laws requiring nearly all healthcare facilities to inquire about advance directives.3 These cases have vividly demonstrated that many Americans have strong feelings about how we should treat those who cannot speak for themselves, how we want our own ends to be (if given a choice), and what makes life meaningful in the first place. Yet, only a small minority of all adults has executed an advance directive. A major contributing factor of this is that patients are often not asked in a meaningful way at hospitals or by healthcare providers in non-hospital settings. Indeed, one major study of patient records found that fewer than 50 percent of severely or terminally ill patients had an advance directive in their medical records.4

The reality is that advance directives (naming a healthcare agent and/or creating a “living will” regarding end of life wishes) are important regardless of age or current health. Simple proof: Cruzan and Schiavo were each in their twenties when their medical events struck. Beyond these high profile cases are those that come before ethics committees around the country every day because people do not have advance directives in place, even though there was plenty of time and myriad good reasons to engage in advance care planning. Among others, these cases include:

  • Patients who experience complications from elective surgical procedures;
  • Patients who have significant others that not otherwise authorized to make decisions on their behalf under applicable state law without a valid advance directive, such as unmarried couples or same sex couples;
  • Residents of nursing homes who have acute health episodes;
  • Patients with a range of chronic and progressive conditions who have never been asked about their advance care wishes; and
  • Individuals in a car or other accident.

In many cases, the lack of advance care planning leads to a tragedy: families dealing not only with the grief of loved ones who are suddenly unable to communicate — and often near death—but also the heartbreak of trying to figure out who should make healthcare decisions and what those decisions should be. In many cases, this uncertainty could have been prevented with the simple act of executing an advance directive.

Ultimately, NHDD strives to provide much-needed information to the public, reduce the number of tragedies that occur when people’s wishes are unknown, and improve the ability of healthcare facilities and providers to offer informed and thoughtful guidance about advance healthcare planning to their patients. It also seeks to address the various misunderstandings in the public about advance directives, including that:

  • People do not know the differences between a living will and a healthcare power of attorney;
  • People believe advance directives are only used for limiting care;
  • People assume that creating an advance directive is hard to do; and
  • People are unaware of the need to talk about healthcare planning when they are healthy (assuming severe illness or a catastrophic injury will never happen to them).

Significantly, there is no “agenda” for NHDD other than education and improving the ability to honor patients’ wishes. To that end, the event exists to encourage all people to discuss and document their wishes, whatever they are.

To be sure, all Americans should make their healthcare wishes known, not only to protect their own interests, but also as a gift to their loved ones. Similarly, lawyers should routinely encourage their clients who are individuals to engage in thoughtful advance care planning. Consistent with all of this, a key theme of NHDD is to encourage lawyers to “lead by example” and ensure that they have documented their own healthcare choices. Indeed, experience has shown that engaging in one’s own advance care planning makes it easier to discuss the topic with others.

Admittedly, advance directives have limitations, but the bigger problem is not with the documents themselves, but the failure to create them and honor them. Among the things that any lawyer can do to support NHDD are to:

  • Lead by example: execute your own advance directive and see that your loved ones have done so, as well;
  • Work with clients to ensure that they are in compliance with requirements of federal and state laws on advance directives;
  • Volunteer to speak at an NHDD event in the community (at a healthcare facility, library, religious institution, etc.);
  • Present a CLE on advance directives (either public or in-house);
  • Present an advance directives “brown bag lunch” session for your staff;
  • Write an Op-Ed on the importance of advance healthcare planning or present a public service announcement on the radio about NHDD;
  • Write an article for your local Bar Association’s magazine or on-line newsletter;
  • Offer free office hours on April 16 to provide the public with advance directives forms;
  • Volunteer to create or update your state-specific website on advance directives;
  • Visit www.nhdd.org for more ideas and resources; and
  • Spread the word in the community and discuss the topic in places of worship, with civic groups, and with friends.

Many of the above are great opportunities for young lawyers to gain speaking experience, retired lawyers to stay engaged, and for all lawyers to pick up some new clients.

NHDD’s motto is that “your decisions matter,” but a person’s choices may be of little or no practical use if they have not been communicated to others. In honor of NHDD, lawyers are encouraged to take a few moments to reach out to relevant clients on April 16 (or the whole week or month) to encourage them to decide, discuss, and document their wishes, whatever they may be. Clients who already have an advance directive may be encouraged to use April 16 to revisit the document to be sure it is still accurate and remind their loved ones of its contents — as well as the need for their loved ones to engage in their own advance care planning.

There are also numerous ways for lawyers to assist their healthcare clients, many of which are driven by the host of legal requirements for providers to offer materials as well as education advance directives.5 These opportunities include helping clients:

  • Reexamine any existing advance directives policies and/or create new ones;
  • Ensure that clients are documenting, in a prominent part of the patient’s record, whether the patient has an advance directive;
  • Ensure that providers’ professional and support staff are educated on the topic; and
  • Ensure that providers have up-to-date information and forms available for their patients that are consistent with applicable state law.

The website www.nhdd.org has a variety of free information, including free advance directives forms for every state, and tools to assist with thoughtful reflection on healthcare choices. Furthermore, the ABA’s Commission on Law and Aging has a variety of resources available at: http://www.americanbar.org/groups/law_aging/resources/health_care_decision_making.html Please use these resources and share them with others.


Nathan Kottkamp, a partner with McGuireWoods, LLP, in Richmond, VA, is the founder and chair of National Healthcare Decisions Day, a grassroots collaborative effort to inspire the public and providers to take action with respect to advance care planning. He can be reached at nkottkamp@mcguirewoods.com.


1Letter to Jean Baptiste Le Roy, 13 Nov. 1789.
2

Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990)); see also, New York Times coverage of the Schiavo case (e.g., http://www.nytimes.com/2005/04/01/national/01schiavo.html?_r=0).

3

42 U.S.C.S. § 1395cc, 42 CFR §§ 416.50, 489.102, 494.70, and 495.6.

4

“Advance Care Planning: Preferences for Care at the End of Life,” U.S. Agency for Healthcare Research and Quality (www.ahrq.gov), 2003.

5

42 CFR §§ 416.50, 489.102, 494.70, and 495.6, Joint Commission accreditation standards (RI.01.05.01), and AAAHC accreditation standards (Rights of Patients, F.8).


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