In 1976, California became the first state to pass laws enabling adults to record their wishes regarding end-of-life care and other health care decisions in advance. Medical directives, often referred to as advance directives or advance health care directives, along with a number of other estate planning documents, require us to confront some of the unpleasant, important and inevitable issues that we will face.
Unfortunately, what typically happens is that families fail to discuss these topics. According to the California Advocates for Nursing Home Reform (CANHR) only 37% of American adults have an advance directive. That means, when an emergency strikes, family members and medical providers must make the decisions without any input from the person who has become ill or injured.
There’s a way to handle this, according to the article “Keep medical directives up to date” from the Watertown Public Opinion. If you don’t have a medical directive, it’s time to meet with an estate planning attorney and get started on one. If you do, but haven’t looked at it in more than four or five years, it’s time for a review to make sure it still reflects your wishes.
Medical directives that are out-of-date often become useless. For instance, if you completed a “Durable Power of Attorney for Health Care” before 1992, it has expired by operation of law. Furthermore, even if still legally valid, if a family member who was designated to make end-of-life decisions for a spouse is suffering from dementia, they are no longer legally competent to make any decisions and cannot act as an agent.
One way to avoid this is to have an alternate person designated. Your spouse may be aging along with you, and one of you may not necessarily be able to make decisions when they are needed. So be sure the alternate agent has the strength of character to make a decision that follows your wishes, even if it’s not what your family wants to be done. They have to be able to follow your instructions, which is not always easy.
Just as important as having the documents created, is having the conversation among family members about what you want or don’t want. Having that conversation and clarifying wishes will make it far easier for the family member or designated representative, because they will know they are doing what you want. This conversation may give the individual empowered to make the critical decision greater confidence and strength.
While it is (relatively) easier to have these conversations when everyone is in good health, a family member who is scared, grieving and emotionally overwhelmed, may find themselves confronted with one of the hardest decisions of their lives.
That’s why it’s so important for people to give their family members the clarity and direction they will need when it comes to end-of-life care decisions. You’ll need to select a person with a strong backbone and who is not easily frazzled. Also, check in with them periodically to make sure they can still perform the duties of their role.
An estate planning attorney will be able to discuss these matters with you and clarify who, among your family members or friends, would be the right person to select. A family meeting with the attorney may also make the process easier for all concerned. Your attorney can also be sure you have the most current language in your advance directive. For instance, former California Governor Jerry Brown signed A.B. 3211 in 2018, which made three amendments to the state advance directive act that clarify the rights of patients regarding organ donation. The relevant form has been updated as a result.
Reference: Watertown Public Opinion (Nov. 20, 2018) “Keep medical directives up to date”