The debate over health care reform has brought an important issue into the headlines. The public debate is not very enlightening, but it serves a good purpose if it causes more people to include one or more important health care documents in their estate plans. Everyone needs one or more of these documents, regardless of the value of the estate. Even if you are not ready to put the rest of the plan into place, the health care documents should be prepared and executed.
One problem with many plans is that they do not have any health care documents. An equally serious problem is that people have the wrong documents or do not understand the limits of the documents they have. For example, most people do not realize that in a high percentage of cases the health care documents are ignored.
Let's look at the different documents. You will learn which are best for you and how to increase the probability that your wishes will be followed.
The living will is the best known health care document. It is simple to execute. Most states officially recognize living wills and have authorized sample forms that are easy to download from the Internet and complete. You can locate them through www.caringinfo.org.
The idea behind a living will is that you do not want certain types or levels of care (often called "heroic measures") in certain circumstances. The simplest living will states: "If I have a terminal condition, and there is no hope of recovery, I do not want my life prolonged by artificial means."
Such simple statements are difficult to apply in practice. Medical professionals can disagree over whether someone has no hope of improvement, is terminally ill, or is brain dead. Even when the experts agree, the family members might disagree on either the medical condition or on whether to continue treatment. Some living wills prohibit artificial means of life support, but there is disagreement over whether some forms of care (such as feeding and hydration tubes) meet that definition. They might be considered steps taken to keep the person comfortable.
In addition, you might have one situation or set of circumstances in mind when considering the wording of the living will. When presented with a different set of circumstances, you might reach a different conclusion of the preferred course of action.
To avoid these problems, many estate planners now write custom living wills. Detailed questionnaires of sixty pages or more reveal how a client wants to be treated or not treated in different situations, and those views are reflected in the living will.
Even this does not avoid problems. The questionnaires still cannot cover all possible scenarios and eliminate gray areas or difficult decisions, leaving decision makers uncertain of what to do. Also, technology and medical knowledge change. Conditions that could not be treated a few years ago can be treated now. As with the simple living will, there can be disagreements over the facts such as the diagnosis, probability of improvement, and whether a person is in a vegetative state.
Perhaps most important, living wills simply aren't effective. The medical professionals often do not see the documents until after treatment decisions are made. Some ignore the documents, because they fear that surviving family members will sue for failure to treat. In addition, a doctor can interpret a document to approve treatment in a circumstance when others interpret it to withhold treatment. Even if a doctor believes the living will prescribes non-treatment in a situation, treatment still is likely to be given at the request of one or more key family members.
Another simple document is the do not resuscitate/hospitalize order. DNR and DNH orders are common among older people who are in frail condition, especially those in nursing homes. Medical researchers say CPR rarely helps these individuals recover and often makes their passings violent and painful. Regarding hospitalization, some people believe that additional treatment for new ailments or developments will not prolong their lives or improve their quality of life. These people opt to be kept comfortable in their residences. They are declining CPR or hospitalization or both in advance by executing DNR and DNH orders.
The documents should be kept in the individual's medical chart, and any medical personnel who regularly treat the individual should be made aware of it. Again, some doctors will ignore these documents out of fear or being sued for failure to treat.
A third document is the health care proxy or power of attorney.
This is similar to the financial power of attorney that should be in every estate plan. The document appoints one or more people to make medical decisions when the person appointing the proxy is unable to. State laws on these documents vary, but most states do recognize the health care power of attorney. It is far more effective than the other health care documents, because it does not rely on interpretations of language drafted in advance that might not apply to the current situation. Instead, one or more people are appointed to discuss the facts with medical personnel and make decisions.
The person appointed the proxy should be someone who is likely to be available when medical decisions are needed. You probably do not want to appoint someone who does not live near by, travels a lot, or is not easy to get in touch with.
Some advisors recommend naming more than one proxy. This takes the life-and-death-decision making burden off one person. It also ensures a more complete discussion and consideration of all the factors. When more than one person is appointed, you might want to require that all agree before treatment can be withheld. Some people appoint only family members; others believe at least one proxy should be a non-family member who knows the family.
Another document you should have is the HIPAA authorization. This authorizes medical providers to release information to the named persons without violating the privacy provisions of the Health Insurance Portability and Accountability Act of 1996. Without this document some medical professionals will not share information about your medical situation, even with family members or holders of proxies.
The latest innovation is to combine the essentials of these documents into one called an advanced health care directive. In addition to combining the living will and power of attorney, the directive can include detailed explanations of your philosophy and preferences in different situations.
The document also can include information such as how you want to be made comfortable and be treated, including non-medical directives. For example, you can give instructions regarding music, grooming, fresh flowers, and other aspects of your environment.
Sample all-in-one documents are available, as Five Wishes, from Aging with Dignity (www.agingwith-dignity.org; 888-5-WISHES). Other versions are available from MyHealthDirective.com. These organizations charge modest fees for the documents and say they have versions for each state.
Whichever document or documents you select, all your doctors should have copies and know how to get in touch with decision makers. You also might want to discuss your philosophy with your care providers so they understand how to interpret the documents. Each proxy or decision maker also should have a copy, and key family members should have copies.
Be sure your estate planner knows if you travel regularly to another state or states. You want to be sure documents will be enforceable there as well as in your home state. You also should be aware that most states allow a doctor or hospital to refuse to follow the instructions for reasons of conscience.
Most of us need help in thinking about these difficult treatment decisions, whether for ourselves or others. A useful guide is a booklet written by the former chaplain at a nursing home. The booklet discusses the pros and cons of different choices and includes summaries of the scientific research of different treatments. You probably could benefit from Hard Choices for Loving People, by Hank Dunn (A&A Publishers, Inc., P.O. Box 1098, Herndon, VA 20172-1098; $4.00); www.hardchoices.com. A PDF version can be downloaded free. You also can check the sources below for additional thoughts and samples of documents.
Help with Health Care Directives
Aging with Dignity: www.AgingWithDignity.org; 888-5-WISHES
National Hospice & Palliative Care Organization: www.nhpco.org; 800-658-8898
Your state attorney general's office
American Bar Association: Tool Kit for Health Care Advance Planning and Common Legal Myths About Advance Medical Directives. www.abanet.org/aging
Quicken WillMaker Plus
Kiplinger WillPower from H&R Block.
Bob Carlson is editor of the monthly newsletter Retirement Watch and the web site www.RetirementWatch.com. He also is author of the books The New Rules of Retirement and Invest Like a Fox…Not Like a Hedgehog.
08-26-2009 5:18 PM