Health Care Decisions

HOW TO MAKE YOUR OWN HEALTH CARE DECISION WHEN YOU CAN'T

As the contentious case of Terri Schiavo painfully illustrates, should you become physically or mentally incapacitated it's best if you can avoid forcing other people to read your mind.

Schiavo was the 41-year-old Florida woman who died after living for 15 years in what some doctors and the courts considered a persistent vegetative state. The protracted, expensive, and excruciatingly public battle over her medical treatment probably could have been minimized or avoided if she had possessed two well-prepared legal documents known as 'advanced directives': a living will and a health care power of attorney.

A living will, which many people are familiar with, is a person's written expression of what life-sustaining medical treatment they wish to have or not have should they become terminally ill or are on life support and are unable to physically or mentally express that decision to their family and medical providers. Ideally, the living will should cover such issues as resuscitation, life support technologies, use of artificial nourishment, and medication and pain management.

A less well-known, but equally important document to complement the living will is the durable power of attorney for medical care, sometimes called a health care proxy. This document, which is different from the durable financial power of attorney, designates a person to act as your agent (the proxy) to make medical decisions on your behalf in the event you are incapacitated. The agent's role is to advocate on your behalf that the wishes expressed in your living will be carried out, or the agent may need to make decisions regarding gray areas not covered by the living will.

Despite the importance of these documents, only one in three American adults has a living will, according to a recent survey by FindLaw. Among adults age 18-34, only 18 percent have them. Yet Schiavo was merely 26 at the time she slipped into her vegetative state, and two famous earlier cases, Karen Ann Quinlan and Nancy Cruzan, also involved young women.

Living wills and powers of attorney for medical care are not foolproof. Disputes can still arise among medical providers and family members. That's why it's critical to have both documents properly prepared and executed for the person to lay the groundwork for an event all of us hope never occurs. Here are several steps to take to strengthen the effectiveness of these documents.

Talk over what you want in the living will. Discuss your wishes with your loved ones, an attorney, and your health professionals in order to clarify your own thinking. Be as specific as possible to cover all reasonable contingencies.

Appoint a strong agent. Be sure the agent understands your wishes and is strong enough to withstand possible challenges from other family members or the medical community. Medical providers sometimes refuse to abide by the living will and the agent may want to change facilities, for example. Sometimes a spouse or child is not the best choice. Appoint a backup, as well.

Tell your loved ones. Let your family know you have these documents, what your wishes are (you may need to discuss this more than once), who's your health care proxy agent, and where copies can be found (don't keep them just in your safe deposit box unless the agent has access to the box).

Consider using an attorney. All 50 states allow for living wills and health care powers of attorney. You often can get them and supporting material through hospitals or state medical associations, national organizations such as Aging With Dignity, or you can buy them 'off the shelf.'

But laws differ from state to state on what language can be used. There are also critical issues as to who can be valid witnesses to the signing of the documents. Because of these possible legal complications, and because the language of generic versions can be vague, financial planners typically recommend that you have an attorney draft or at least review both documents so they are tailored to your desires and conforms to your state's laws. The last thing you want is something open to misinterpretation or challenge. Some states allow the living will and the health care proxy to be combined in a single document, saving money.

Review your documents. Personal situations, medical advances, or your views may change, so review your documents periodically.

This column is produced by the Minnesota Chapter of the Financial Planning Association; 612-789-4799; www.fpamn.org; email: office@fpamn.org. 

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