Living Wills Update

There are several terms that apply to this month’s topic:

“Healthcare Proxies” allow the patient to appoint someone to speak for them as their

“Agent” and to invoke their medical directives when the patient can no longer do so on his or her own.

“Living Wills” generally apply to the issue of whether life support should be withdrawn in the case of a terminally ill patient who has little or no realistic hope of significant recovery.

“Medical Directives” usually provide health care instructions for many other situations, whether the patient is terminal or not.

Our office policy is to strongly advise our clients to appoint one and only one agent to speak for them, so that there is no room for confusion or argument. If the client wishes to name more than one person, we suggest that they name them in the order in which they should serve. For instance, the oldest child first, followed by the others.

Recent studies have shown that the care provided to patients at the end of their lives has changed little over the years despite the advent of the written living will. Hospitals and doctors are often unaware of the patient’s wishes, and often over-treat and under-medicate patients. The medical people are sworn to take care of patients, and they are unwilling to allow a person to simply pass away. And the thought of medicating someone with massive doses of pain medicine, even when that may be just what the person wants or needs, is too much for medical people to deal with.

Another situation that arises in a hospital setting is that the treatment of the patient is not always in one doctor’s control. The patient may be seen by several specialists. Thus, it becomes all the more important that the patient have a living will that appoints one person to oversee all of that treatment.

And the families of the patients are not blameless, either, as they are often unable to take the responsibility for making the decisions needed to bring a mechanically-induced life to its end. People do not want to give up hope, and who can blame them? Perhaps they cannot find the documents, or they do not know where to find them. If you have ever had the responsibility of allowing someone to die according to THEIR intentions, it can be a daunting task. And it is one that stays with you a long time.

Many medical facilities present the idea of a medical directive to the patient at the time of admission. There is probably not a worse time to contemplate the end of your life than when you are sitting in a triage area awaiting any medical treatment that the facility might throw your way. You are in pain or other discomfort. Your nerves are frayed, and you are certainly not thinking clearly.

I tell the story of my trip to the emergency room when stricken with the pain of a kidney stone attack. I swear to this day I would have said or done anything in order to get the pain relieving drugs I needed. I was in no frame of mind to consider the terms of a living will, but one was offered to me. I was enough of an attorney at that moment to say that I was not competent to sign such a document, but I later thought about all the people who would have signed anything in order to get their hands on the right drugs or treatment.

The creation and execution of a proper living will is something that should be done when you are well, healthy and thinking right. Many of the decisions that you are asked to make should be made when you are strong. When does a living will take effect? When you can no longer make or communicate your own medical decisions. This occurs when you are out of your mind, or in a coma, or otherwise unconscious.

As you can see from these paragraphs, much of the medical directives and living will comes from common sense, but a lot derives from the practice of medicine itself. It can be daunting and confusing for a lay person to be forced to make decisions for a loved one in this environment, so the best advice I can give to a client is to make as many of those decisions as they can for the agent, then appoint an agent who will listen and take orders. Having performed this duty more than once, I can tell you it is far from easy, but having a good document is a great stress reliever for the agent.

And as far as the cost is concerned, you can get a living will prepared by most attorneys for a fee of $35-$75. If you are asked to pay more than that here in Western Pennsylvania, shop around. This is a small price to pay for the peace of mind that comes with knowing that you have given good directions for the rest of your life.

Christopher M. Abernethy has been practicing law in Hampton Township since 1976. He focuses on elder law, which includes wills, trusts, powers of attorney, living wills, and probate matters. He also is proficient in all aspects of real estate law and business law. He is a member of the National Association of Elder Law Attorneys, and the AARP Legal Services Network. He can be reached at 412-486-6624 or by email at cabernethy@aaylaw.com.