Estate planning lawyers know that advance directives can be a challenging and frightening topic to discuss for a handful of reasons. First, what are advance directives? Advance directives are simply legal documents that allow you to tell medical professionals and loved ones in advance what your wishes are in case you are unable to convey them.
There are two forms of advance directives: a Living Will and a Designation of Health Care Surrogate. A Living Will provides direction to your physicians and your loved ones of what treatments you do or do not wish to receive and under what conditions. A Designation of Health Care Surrogate allows you to appoint someone other than yourself to make all your medical decisions for you if you are unable to make decisions for yourself.
Next, why is it important? Advance directives are crucial when you are incapacitated, and your loved ones are left trying to decide what you would want, especially when they disagree with each other. The issue entered the national spotlight when it was at the crux of the case of Terry Schiavo. Ms. Schiavo was a 26-year-old Florida woman in a persistent vegetative state for 15 years while her family battled in court about whether to remove life support. She did not have an advance directive, but if she had, her family certainly would have had an easier time deciding how to proceed.
Well, if it’s such a great tool, what is so scary about it? Unfortunately, it’s complicated. First, it is difficult for someone who has no experience with needing life support to plan ahead for such an event and decide what they would want in that case. Next, since we are limited in our ability to plan for such uncertainties, living wills are often vague and lack specificity. Although families now have a starting point to understanding their loved one’s wishes, the ambiguity still leaves the responsibility of interpretation on families. For example, if Terri Schiavo did have a living will stating her wishes to be taken off life support in such a state, her family may have argued over other issues, such as whether the doctors’ diagnoses were correct or whether the condition she was in was the condition Schiavo had contemplated in her living will.
Another chilling concern surrounding advance directives is what if they pull the plug too soon or won’t listen to what you directed? Advance directives merely give your advocate a tool to enforce what you want. It protects doctors from liability for listening to what you directed. However, it doesn’t mean doctors will be rushing to cut off medical care. Most living will forms require two physicians to determine that there is no reasonable medical probability of any recovery from such condition before any treatment will be withheld. However, if a doctor decides not to follow your advance directive, for medical or religious reasons, the doctor may be responsible for transferring your care to a physician who will do so.
Lastly, one of the most common issues that arises with advance directives is that loved ones and medical professionals do not have knowledge of or access to your advance directives. Whether they are locked in the safe at home, are lost, or are held at your attorney’s office, if no one knows about them, they can’t be used unless someone brings them to the attention of the physicians.
So, how can I actually use these advance directives effectively? First, discuss the options and possible scenarios with an estate planning attorney to have them drafted and fully executed! If you never get around to having advance directives prepared, then you’re leaving yourself and your loved ones open to major anxiety and disagreements. Second (and equally important!), discuss these important documents with your loved ones and physicians. When deciding on the person to serve as Health Care Surrogate, choose a person you trust will follow and enforce your wishes. Once that person is provided the power to make decisions for you, the vagueness of the documents will be entrusted to one person who understands your wishes to interpret and choose what to do. If you prepare your physician ahead of time, you can make sure he or she is aware of what you want and will follow such wishes.
Although considering a situation where your healthcare is out of your control can be a frightening thought, careful and deliberate preparation can save you and your family the heartache, disagreements and uncertainty of not knowing what you would want. We would be honored to help you prepare and understand your advance directives and all your estate planning needs. If you are in need of an estate planning attorney in Ormond Beach, Daytona Beach and Palm Coast, please contact Mara Law, P.A. at 386-868-5170.