Dying Decisions – It’s a Good Thing

This may seem to be a strange blog post title, but we all know that death is part of every life. And making a decision in advance as to how you want to die and what treatments you want to receive is usually a good thing. As Elder Law Attorneys, we often are called to assist people and their families toward the end of their life. We have found that families that have had the “dying discussion” with their loved one experience much less stress (caused as a result of wondering whether we’re doing the right thing) than families who have not done so.

Having the talk with your family is crucial. There is no substitute from hearing it directly from Mom or Dad or your Spouse what they want when the time comes. However, talking is not enough. You need to have signed proper legal documents that reflect your directions. In this blog post, we are going to discuss two health care documents necessary to carry out your last wishes - Private Living Will and Do Not Resuscitate (DNR) Order.

A Private Living Will is a legal document in which you can state what medical treatments or interventions you want to receive in an attempt to prolong your life. You can be specific, stating whether you want a particular treatment, or you can leave the decision up to your doctor or person that you have appointed to make health care decisions for you.

I would caution you to not be too specific or you could be “hung by the tongue”. There is an infamous case where a man stated that he did not want hydration (liquid) when he was in the process of dying. When he was later dying with cancer and was in a lot of pain, the medical team determined that they could not give him morphine to dull the pain because of his wish not to receive “hydration”.

The standard language of a Private Living Will in Arkansas states that the “attending physician” may “withhold or withdraw” treatments that only prolong the process of dying. However, most attending physicians that I have met do not want to have to make this decision. It is much better practice to also have a clause in your Private Living Will which appoints a family member as your health care surrogate. In this case, the doctor will state that the person is terminal or irreversible - then the family member can decide what actions to take, based on your written instructions and your prior discussions with them.

By comparison, a Do Not Resuscitate (DNR) Order is a written order by a patient’s attending physician that prevents CPR in the event of cardiac or respiratory arrest. Arkansas provides for recognition of DNR orders by emergency personnel such as EMS workers and hospital emergency room staff. A person can request that their doctor issue a DNR order or they can make this request in their Private Living Will.

This is not an easy issue and is not a discussion that a family wants to have. However, I will promise you that (after the fact) this is a discussion that families are very glad that they had with their loved one while they had the opportunity to do so.

4 NOW Documents

If you think about it, a Will or Trust does nothing to help YOU. The primary benefit is for your family when you die. Both documents say who gets your assets when you die and both name a person to administer your estate. There are many other differences in a Will and a Trust which will be discussed in much greater detail in future blogs. The purpose of this blog post today is to discuss what I refer to as “NOW Documents”. These are documents that help YOU NOW, while you are still living.

1. Property or Financial Power of Attorney. This is a legal document in which you appoint an “attorney-in-fact” (not to be confused with attorney-at-law) to make financial or property decisions for you. In effect, the person you name “steps in your shoes” since you give them power to take certain actions for you. Although a power of attorney can be designed to be immediately effective, for estate planning purposes, it is normally springing, that is not effective until you are certified incapacitated by two physicians. Gone are the days where we can routinely ‘get-by’ with a one-page power of attorney. Most financial institutions, brokers and others want to see the power that you are trying to enforce specifically laid out in the power of attorney. As a result, a properly prepared power of attorney may be 20 –30 pages long. The power of attorney should be durable, that is, be effective even if you are incapacitated.

2. Health Care Power of Attorney – In this document, you appoint a health care attorney in fact to make health care decisions for you in the event you are not able to make such decisions for yourself. This document authorizes your decision maker to make all health care decisions on your behalf, if you are not able to make them yourself, including the ultimate “pull the plug” decision, discussed in Private Living Will below. For example, I was the attorney in fact under my Mom’s Health Care Power of Attorney after she had her stroke. For 2 years, I made all health care decisions for her, since she could not make them for herself. This is the ultimate NOW document, since it authorizes another person to make decisions that have a profound effect on your quality of life, while you are living but not able to make decisions for yourself. This document needs to be separate from the property power of attorney, not just a sentence or paragraph in that document – it is much too important for that! Also, since a separate body of Arkansas law governs health care powers of attorney, they need to be designed and executed separate and apart from a property power of attorney.

3. Private Living Will - This is the state specific document whereby the attending physician certifies that you are terminal and irreversible or permanently unconscious. In this event the physician may withhold or withdraw treatment that only prolongs the process of dying. The private living will may be designed to require that the attending physician consult with the person appointed in your Health Care Power of Attorney before withholding or withdrawing treatment that would unnecessarily prolong your life. Having personally been in the shoes of decision maker in a situation like this, I can testify that this is not an easy decision to make. It is very helpful not only to have a very good living will that describes what treatment you do and do not want, but also to have a conversation with the person that you are appointing to make this decision for you – having had this conversation makes It much easier for the decision maker to make the decision that you want them to make when the time comes.

4. HIPAA Release - Because of the new privacy laws, it is imperative that you authorize medical personnel to release your confidential medical information to certain family members. Without this document, if a medical provider releases any of your confidential medical information to anyone, they most likely have violated a provision of this federal law. If you go into the hospital for an elective procedure, they will ask you to sign a HIPAA (Health Insurance Portability and Accountability Act) authorization on the spot, before your surgery. However, if you go into the hospital on a stretcher, you are not able to sign anything! I hear stories almost every day of family members who are shocked when the hospital won’t even tell them what room their loved one is in – much less give them any health care information. Don’t get upset at the doctor or nurse or medical provider – they are just following the letter of the law. In some cases, release of this information is a felony! Don’t put them or yourself in this situation. Sign a HIPAA Authorization designating who you want to have your protected health care information NOW – before something bad happens.

The above documents are necessary to complement any estate plan. They are normally referred to as ancillary documents since they complement either a will or trust based plan. However given the above descriptions, I think you understand why I think that these NOW documents are the most important documents in any estate plan.