Living Wills: Have they failed?

That was the heading on a story in the St. Louis Post-Dispatch on Thursday April 29, 2010, in the Health section.

The article, written by Judith Graham of the Chicago Tribune, was inspired by legislators decision to remove provisions supporting end-of-life planning from laws enacted last month.  

Here's some basic history: Last year, President Obama, as part of his health care reform, proposed initiatives to try to improve discussions between physicians and patients concerning end of life care and advanced directives (i.e., documents expressing our wishes as to whether "extraordinary measures" should be taken at the end of our lives, in case we are unable to state our preferences at that time). One version of the bill included a provision to pay for end-of-life consultations every five years. These proposed consultations would not be mandatory and would be patient-led, meaning that patients get to choose their path of care, not the physician. Given the intense opposition he had received, Obama dropped his suggestions from his health care proposals.

While I don't really wish to get into specifics about whether or not Obama's plan was the most effective way to encourage the preparation of a living will or advanced medical directive nor whether other items in the bill referring to hospice care etc. were necessary or not, I do think the debate over "death panels" and the like skewed somewhat the point of why someone would create these documents or at least have the conversations with their doctors and loved ones.

According to Graham's article, only 30% of adults have prepared an advanced directive, living will, or health care power of attorney.  The idea behind these health care documents is that each of us are ultimately in charge of what medical treatments and procedures should be performed and when.  The problem we see, as estate planners, is that no one wants to think about the possiblity of becoming incapacitated.  In reality, anyone over the age of 18 is vulnerable if they have not executed these documents, because even their parents have no legal rights to make health decisions on their behalf, and even if they did, they wouldn't know how the patient would decide.

This provision in the health care law was a way to encourage each American to think about the possibility of becoming incapacitated and unable to make or communicate their own health care treatment decisions and what procedure they hope is followed from that point on.

I always tell our clients that the most important thing to do regarding your legal health care documents is assign a health care surrogate who they trust.  The health care surrogate should be someone that understands and will respect your beliefs, views, and decisions regarding end-of-life decisions.  This person should be familiar with you, but should also have had these conversations with you before.  The duty of a health care surrogate is to make the health care treatment decision that YOU, the principal, would make if you still had the ability to make or communicate your decisions.  Their job is not to impose their beliefs or views on your situation and their job is not even to talk to the doctor to see what options give you the best chance at life.

Having a living will and advanced directive does NOT mean that you respect life more or less than someone else.  There is not really any 'standard' form, though there are 'standard' provisions found in most versions of these documents (at least those prepared by competent attorneys) that specifically address certain laws (which are state specific).  But a person could just as easily fill out the forms with a very 'conservative' view of end-of-life issues as they could fill them out with a 'liberal' view.  Also, many of the forms merely give the health care surrogate, in cooperation with the physician, the ability (at some point) to impose your wishes.

As the article below points out, these forms are often to vague to really carry out with much certainty.  The real movement should be toward education and communication between family and doctors-patients. 

My favorite quote of the article: "The debate should be over the best way to honor the wishes of the individual, whatever those might be," Emanuel said. "In that light, this isn't a polarizing issue at all. It's something we can all believe in."

Read this article below and think about your own situation, or your parent's situation, or your child's situation.  Have you had this conversation with your loved ones?  Have you had this conversation with your doctor?  Do you have these documents in place, so you or your loved ones wishes can be followed?

http://www.stltoday.com/stltoday/lifestyle/stories.nsf/healthfitness/story/DC4E097F098F6FAE8625771300728C4F?OpenDocument



Best,

Paul Gantner
Attorney at Law