April 01, 2013

Advance Directives: My Response to the Discussion

Dr. Daniel J. Brauner

Editor's Note: This article is in response to Advance Directives: What Should Lawyers Know (and Do) to Help Clients with Healthcare Planning? by Barbara J. Daly.

I appreciate having the chance to respond to Professor Barbara Daly’s and COLA Director Charles Sabatino’s thoughtful articles about the future of advance healthcare planning. There are large areas of agreement in our different perspectives. We agree, for example, on the importance of choosing an effective durable power of attorney (DPA) who can help guide medical decisions and advocate for patients in the event that they are unable to do so. The importance of a DPA hinges substantially on the failings or shortcomings of the advance directive, a point that Professor Daly and Mr. Sabatino each, at least initially, acknowledge. As Mr. Sabatino observes in this issue’s COLA Column (see page 5), “We lack a crystal ball to tell us what challenges we will face in our final days.” Applying the aphorism of the “bull look[ing] different from inside the ring,” Mr. Sabatino further demonstrates an awareness that, as we become older, what previously looked like an unacceptable outcome may come to seem adequate or even suitable. Both authors appreciate the limits of advance directives and acknowledge that end-of-life decisions cannot be adequately forecasted by the content of such documents.

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