Why Everyone Should Have a Living Will

Vol. 33 No. 4

By

Gretchen Edison Gaynor, PhD, JD, is Market Conduct Examiner II at the Missouri Department of Insurance, Financial Institutions and Professional Registration. She previously was a solo attorney practicing elder law and estate planning.

Most adults have heard of a living will, but they may not be sure exactly what it is. Many have heard the story of Terri Schiavo, and most would agree that we would not want to be in a similar situation. (Schiavo fell into a persistent vegetative state following cardiac arrest and, having left no explicit instructions concerning the use of life-prolonging measures, became the center of a two-year legal battle between her husband, who wanted to remove her feeding tube, and her parents, who argued that she was still conscious and should be kept alive.) But relatively few adults have completed a “living will,” either a health care directive or a medical power of attorney. These are the legal instruments that determine end-of-life care according to the wishes of the individual who executes them.

Medical Directives and Powers of Attorney for Health Care

The advance directive, health care directive, or medical directive details the types of medical procedures that are preferred in the event the individual is unable to make his or her desires known because dementia, coma, or injury prevents communication. A power of attorney for health care, or surrogate medical decision maker designation, gives the authority to a specific person who will determine which treatments are to be given or withheld for an individual who is unable to communicate. These are not mutually exclusive, and they often are executed together in the same document. The power of attorney is used when the agent is available and willing to act; the directive is followed if the agent fails. Without these documents in place, it is up to the next of kin to make the decisions regarding what degree of medical intervention will be used to prolong the life of the individual who has no hope of recovering and will die if treatment is withheld. If the family is divided and litigious, it can exacerbate an already tragic situation.

Because a power of attorney for health care, or medical power of attorney, puts one person in charge, that person should be someone in close proximity geographically, who knows what the individual would want and who can be sufficiently clear minded to give those instructions, rather than giving direction based on what that person would want for him- or herself. This is an important distinction that the attorney needs to make clear when the individual chooses the agent (and the subsequent power of attorney if the first is unavailable or unwilling to serve).

A health care directive lets the individual maintain control over medical treatments. This document may express the desire that every reasonable effort be made and every possible treatment be given. Or it may express the individual’s desire that life support be withdrawn and only pain relief treatments be given until life ends; this would occur at the point in time when the physician, or two concurring physicians, decides there will be no recovery and medical interventions can only prolong life.

Medical providers and health care institutions prefer to know that there is an advance directive or a surrogate decision maker to prevent ambiguity if a patient is unable to express his or her wishes owing to illness. The Patient Self-Determination Act (PSDA) is a federal law that requires hospitals, nursing homes, and other health care institutions receiving funds from Medicare and Medicaid to provide information on health care directives to patients upon admission. They are mandated to provide a summary of the individual’s rights on decision making and the policies followed at the facility regarding the use of advance directives. The institution must ask if the patient has a directive; however, the patient is responsible for providing a copy.

Getting Clients to Plan for the End of Life

We know Americans are very hesitant to plan for the end of life. Even though attorneys in elder law practice or trust and estate planning may urge their clients to complete a medical directive or execute a power of attorney for health care, these can be stumbling blocks for clients who are reluctant to engage in these conversations. Study after study has shown that current forms, usually provided by a state agency or bar association, are too complex for most individuals. Studies estimate that 15 percent to 30 percent of adults have completed health care directives; even with ready access and the intention to complete one, the process entails a daunting set of decisions.

A personal anecdote: At a financial education workshop, as part of a quarterly “Women & Wine” series where the participants were at ease and familiar with one another, only one of a dozen participants completed a medical directive after spending an hour going through the Missouri form, with spontaneous opportunity for questions and a very engaged discussion. Leaving with the forms to discuss with family, none of the other attendees followed up by completing the forms, even when they expressed the intention to do so.

Medical researchers have shown that the use of educational videos dramatically improves the likelihood that critically ill patients in the hospital would complete an advance directive (tinyurl.com/hchcgur). In lower socioeconomic groups this was even more effective; these groups favored the most aggressive life-prolonging treatments before learning about the rights that the directives protected; then they were much more likely to execute an end-of-life-decisions legal document. Brochures had little impact on the use of medical directives, but multimedia was very persuasive in convincing patients to complete an advance directive or designate a surrogate decision maker (tinyurl.com/jnjtwva). For lawyers who are able to talk fluently about trusts and taxes but soft pedal around the medical directives, there are multimedia resources online that may help the client in making these decisions without the awkward conversations in the attorney’s office.

In Minnesota, which has long been at the forefront of advocating for health care directives and surrogate decision makers for medical care, a nonprofit group, Honoring Choices Minnesota, has produced a series of easily accessible documentaries and short videos. These videos and documentaries tell the stories of people who have made their decisions and executed these legal instruments. The videos are a flexible tool that facilitates the difficult discussions, in a format proven to aid individuals through a complex set of decisions. The attorney might share the website, or a few appropriately chosen stories, with clients in addition to personally advising them on the efficacy and importance of advance health care decision documents, to improve communications and increase the utilization of these legal instruments. Of course, the lawyer would help choose and draft the right documents for the client and ensure that they are executed properly.

Matching Clients with the Right Documents

Who should have medical directives and who should have powers of attorney for health care? As always, it depends. Certain people can benefit more from one than the other; the type of document varies depending on the individual’s situation. A power of attorney for health care is best when there is a trusted family member or friend who lives in close proximity and can be available very quickly in a medical emergency. A health care directive can be more useful when clients do not have someone nearby who knows them well enough to know what they want done if a tragedy happened.

Having a power of attorney for health care instrument readily available removes a hurdle in a challenging and difficult emergency. Although same-sex marriage is now widely recognized, a same-sex couple can certainly benefit from these documents in an emergency, when the need to establish the authority to make decisions for a loved one is critical. Even with heterosexual couples, if a non-responsive patient arrives alone and is unable to communicate, the hospital may request a marriage license or some proof of legal co-habitation and that the wife and husband share the same name before allowing a spouse to make decisions.

A single person living far from family, which is more common today than ever, is more vulnerable. Unmarried adults with no immediate family living in the same city should have a medical directive. This instructs health care providers to give the treatments most aligned with that individual’s wishes, while family has time to arrive from a greater distance with the knowledge the loved one has been treated according to the directive.

With Americans living longer and entering into second and third marriages, the potential for elder abuse and neglect is not uncommon. For example, a sad situation arose when one of my clients’ diabetic father had been mistreated and neglected to the point of critical illness by the “wicked stepmother.” The family learned of it when the wife arrived at the hospital a few days after he was admitted; she was seemingly intoxicated and denied permission for dialysis. The medical staff scrambled to find his next of kin in order for them to seek an emergency guardianship. Filing papers with the court resulted in the appointment of a guardian ad litem and weeks of waiting before the family was able to gain control of their father’s medical care. A power of attorney for health care would have allowed the physician to determine the wife was incompetent and call on the subsequent designee to begin making decisions. Or a medical directive would have been enough to guide the physician in treating the father according to his wishes.

Getting the Maximum Protection from These Documents

The medical directives and power of attorney must be accessible when they are needed. Copies of directives should be provided to family and to medical providers when admitted to a facility. If the client lives far from family, copies may be given to trustworthy local friends, perhaps co-workers, or the human resources department, and regular physicians. A note in a wallet stating that a directive has been executed and a location where it is to be found is also a good idea. Multiple copies are prudent; keeping a single copy in a safe deposit box does no good when these documents are needed quickly. The power of attorney for health care should also be made in multiple copies, one for each agent, the primary physician, and for other trusted family members to have as backup instruments if the agents can’t locate theirs. Of course, the attorney should keep copies on file as well. And, in our more complex society of multiple marriages and mobility, it is very important not only to make the right choice, but also to keep the documents up-to-date as circumstances change.

Our transient lifestyles, with family stretched across the country, or perhaps even estranged within a community, can leave people isolated and vulnerable when tragedy strikes. Discussing the need for these documents is not an easy conversation. We don’t handle death very well. End-of-life matters have become clinical and removed from the home, so we are not acculturated to talking about them. But all family law attorneys, and any lawyer advising clients on personal matters, not just elder law or trust and estate lawyers, should recommend one or both of these legal instruments to protect their clients’ rights. The annual National Healthcare Decisions Day is April 16. To learn more about health care directives and a great opportunity to provide pro bono services in your community, go to the website nhdd.org. Check out your state’s website or state bar association for information on where to find forms for your state.

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