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Reconsidering Living Wills

Published on: Mar 26 2021
estate planning

A good estate plan includes a lot more than will.

Among the documents to be included are those about medical care. The traditional document is a living will but I’ve downplayed the importance of living wills for years since a better document is the medical care proxy or power of attorney.

There are a number of problems with living wills, foremost among them is that they don’t cover a wide range of potential situations. Here’s an article with some real-life examples and that suggest the agent/power of attorney approach.

It is hard enough, under the best of circumstances, to know what your family member would want in a particular situation. But add to that the fact that even top doctors can’t predict outcomes very well.

Lee H. Schwamm, vice chairman of the neurology department at Massachusetts General Hospital in Boston, says that even when he thinks he can predict a patient’s outcome after a stroke, he is wrong 15% to 20% of the time on major outcome measures, such as whether a patient will be able to walk again. “I’ve never seen a living will — and I’ve seen a lot — that speaks to this question of diagnostic uncertainty,” says Dr. Schwamm.

For the last few decades, the living will has received much attention. This document states the types of life-saving care that you want or don’t want. Often it states general principles to guide doctors and might state preferences for a few situations. A common choice of language is that medical personnel should not use measures that would maintain the principal in “a persistent vegetative state.”

Living wills are easy to execute. Most states now have standard forms that can be located on the Internet or obtained from various organizations.

The problems with living wills are that they are vague, do not cover all circumstances, and cannot keep up with changing medical technology and treatments. Also, surveys show that most living wills don’t make their way into the medical charts and have no effect on treatment. Doctors either don’t know about them, ignore them, or aren’t sure how they apply the situation they face.

That’s why a health care power of attorney is a better choice. Instead of trying to draft general principles to cover all situations, appoint someone who knows you to listen to the medical options and make decisions when you are incapacitated. These documents are recognized in all states and can be written to survive your incapacity. The durable power of attorney for health care can be personalized and keeps the courts from getting involved.

The power of attorney can be supplemented with a living will or other documents that express your philosophy and wishes under at least some circumstances. The combination of a power of attorney and living will often is called an advanced health care directive.

Do not resuscitate/hospitalize. DNR and DNH orders for older patients are quite common, especially for those who are frail. Research indicates CPR rarely helps these individuals recover and instead makes their passings violent rather than peaceful. The reasoning for the DNH is that at some point people do not benefit from hospitalization for every new ailment or development. Instead, they should be kept comfortable wherever they are residing.

Someone who agrees with those sentiments can decline in advance CPR or hospitalization

HIPAA Authorization. This simple document authorizes medical providers to release medical information about you to the named persons without violating the privacy provisions of the Health Insurance Portability and Accountability Act of 1996. It can be incorporated into the other forms. Many medical providers won’t even give details to spouses and family members now without express authorization.

If you spend time in more than one state, check with an attorney to be sure that your documents will be effective in all states involved.

Your documents also can include non-medical instructions. You can give instructions regarding music, grooming, fresh flowers and other aspects of your environment you’d like when you are receiving care.

Of course, all of your doctors should have a copy of any documents you execute and know how to get in touch with the agents named. Each of the agents should have a copy. Some family members also should have copies.

Making Health Directives Work

You can take steps to increase the probability that your instructions will be followed.

  • Put it all in one document. A complete plan involves at least a health care power of attorney and living will-type document. You also can include other instructions discussed above. Consider compiling all this information in one document instead of in separate documents.

Sample all-in-one documents are available at Five Wishes, from Aging with Dignity (https://fivewishes.org; 888-5-WISHES) and some other sites. These organizations charge modest fees for the documents and say they have versions for each state. Some of these organizations have biases that favor little or no treatment in some circumstances that you should be aware of when considering their documents. It is better to have an estate planner draft documents for you.

  • Be sure it is valid. Some states require two witnesses for the documents to be valid. Others require three witnesses. A few require the documents to be notarized. Be sure the documents are valid in your state and any other states you regularly enter.
  • Don’t forget about travel. The law of wherever you are when health care is needed determines whether a document is valid. If you regularly live in or travel to other states, produce a document that is valid in the most restrictive state or prepare different documents that meet the requirements of different states. If you travel internationally, you should ask the estate planner your options for having a valid health care directive.
  • Don’t keep it to yourself. To reduce disagreements and misunderstandings among those around you, it makes a lot of sense to discuss details with the people you designate as agents and also general beliefs with your loved ones. Remember that a document, no matter how detailed, can’t cover every possible situation. Your agents need to know your general beliefs so they can make decisions in specific circumstances that reflect your wishes.
  • Consult different sources. Websites and books have sample forms. Estate planning attorneys each have forms developed over the years based on personal experience and philosophy. Consult several sources to get a sense of the available options.

Though I list a number of sources of forms and documents, I don’t recommend that most people complete these documents on their own. This is part of an estate plan and should be finalized with the guidance of your estate planner.

None of these tools provides a perfect solution. In most cases, difficult decisions will have to be made by loved ones. But you can ease the burden and provide a framework for making the decisions.

Keep in mind that most states allow a doctor or hospital to refuse to follow instructions for reasons of conscience.

Most of us need help in thinking about difficult treatment decisions, whether for ourselves or others. A useful guide is a booklet written by a former chaplain at a nursing home. The booklet discusses the pros and cons of different choices and includes summaries of the scientific research on different treatments. You probably could benefit from Hard Choices for Loving People, by Hank Dunn (Quality of Life Publishing Co., 6210 Shirley St., STE 112, Naples, FL 34109; 1-877-513-990; www.handkunn.com.)

The health care power of attorney and durable power of attorney should be separate documents. One is for financial management and one is for health care decisions. You probably want different people as the attorneys-in-fact under these documents.

Powers of attorney should be created early in the estate planning process as essential parts of every estate plan. Be sure to work with an experienced estate planning attorney so the documents will fill your needs.

 

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