Massachusetts Estate Planning and Elder Law

Terry Schiavo, Part 2?

The Palm Beach Post in Florida is reporting a case that is similar to the Terry Schiavo case of a few years ago.  Both cases involve a young woman who has become incapacitated and did not leave behind written instructions regarding her wishes for medical care in that circumstance.  These instructions are often referred to as a living will or a life support statement.  Both cases also involve family members who can't agree on what decisions to make. 

In Massachusetts, a living will is not a legally binding document.  Every person over 18 in Massachusetts should have a Health Care Proxy which is the legal document appointing someone to make medical decisions for you in the event you are unable.  In addition to signing the health care proxy, you should let your health care agent know what you wishes are for medical care, and writing down those wishes is often the best way to make sure they remember your wishes in the moment of crisis.  Writing down your wishes also lets your other family members know that your agent is carrying out your decisions, rather than making their own. 

More information on recording your wishes for medical care is available at Put It In Writing and you can download a free toolkit for advance care planning from the American Bar Association. 

A health care proxy and living will are usually part of a standard estate plan, but you can also obtain them from your doctor. 

Thanks to David Goldman of the Florida Estate Planning Lawyer Blog for his post on this subject.  Keep in mind that the rules regarding health care decision making, and the documents which govern that decision making, vary from state to state. 

How Clear Are Your Last Wishes?

This is the title to a recent New York Times health blog post. (You need to register to read it, but it is free.)

The author recounts her experience with her family trying to deal with her grandfather's illness and their attempts to interpret his wishes about the end of his life.  She writes:

...the experience made me realize that having a living will isn’t enough — we need to be sure that we have been clear and specific, and that we have considered a variety of scenarios as we try to instruct our loved ones to make decisions for us in a medical crisis. Phrases like “terminal illness” are vague at a time when new treatments and drugs can keep patients with a terminal disease alive for months or years.

Many people prepare a "Living Will" or "Life Support Statement" as part of their estate plan.  As the author indicates, these documents are sometimes filled with vague statements about death being a natural part of life, and "heroic measures", which can make it difficult for your family to interpret in their time of grief.

I explain to my clients that even if they sign a Living Will, it is very important that they also have conversations with their loved ones about the different types of situations that can arise and what they might want done in those cases.  These conversations do not need to be a big, formal, one-time thing. They can occur if something is in the news about end of life care, or if a friend or relative is going through something similar.  It can be easier for your family to remember this way - "Oh, I remember when Aunt Peg was in the final stages of breast cancer, mom said she wouldn't want another surgery if that happened to her." 

The Mayo Clinic also has a great guide for discussing your last wishes.  It outlines the different treatments that you'll want to address: resuscitation, mechanical ventilation, nutrition and hydration assistance, dialysis and treatments at the end of life.  It also reminds you to revisit your wishes from time to time to see if they change - for instance during pregnancy or if you are diagnosed with a terminal illness. 

Living Wills - You Need to be Specific

I've heard it said that the Health Care Proxy is the keys to the car, and the Living Will is the map.  If you want your health care agent to be able to make good decisions for you when you are unable to decide for yourself, then you need to give them a detailed map and be specific about your wishes.   A recent article in the New York Times (you need to register to read it, but registration is free) outlines the reasons for this, and gives examples of ways that lack of specificity could backfire:

Dr. Ferdinando L. Mirarchi, chairman of emergency medicine at Hamot Medical Center in Erie, Pa., tells of a very active 64-year-old woman who nearly died because a nurse read her living will as a D.N.R. statement. The woman had slipped on ice and broken a leg, which was reset surgically. On the second postoperative day she began bleeding in her abdomen, and excreted and vomited blood. But the nurse saw her living will and told the physician on call that she was D.N.R. and thus did not warrant admission to the intensive care unit. Fortunately, another physician overrode the nurse’s interpretation and resuscitated the woman, who successfully underwent emergency surgery to stop the bleeding.

You should consider whether you want life saving treatment in the case of certain diseases but not in others:

Medical consultants writing in Patient Care (Nov. 15, 2000) noted that “the less inclusive a living will is, the more trouble it can cause.” Doctors may be uncomfortable following vague directives. The consultants suggested that living wills could be more useful if the directives were disease specific. For example, if you have emphysema, you may want to accept antibiotics and mechanical ventilation if you develop pneumonia, but you may not want such treatment if you are near death from cancer.

A good Living Will/Health Care Proxy combination is the Five Wishes which asks  you to really explore what decisions you want made for you, and how you want to be treated at the end of your life.  This is the document I provide to my clients who need Living Wills.

Living Wills are not legally binding in Massachusetts, but you should still execute one because it will provide guidance to your health care agent and medical providers, and you could find yourself injured in a state where Living Wills are legally binding.

Changing Your Living Will During Pregnancy

Most people think that the time to revise their estate plan, including their health care proxy and living will is when a big change occurs: marriage, birth of a child, divorce, etc. However, as Shelly Mactyre, of The Fig Tree  points out, you may wish to change your living will or health care directive when you become pregnant to reflect any changes in your desire for extraordinary measures due to your pregnancy. 

Shelly decided that she wanted to be kept alive until the baby was viable. Have you thought about if you want to change your plans? And more importantly, have you told the person who would have to make this decision if you were unable?

Living Wills - One Year After Terri Schiavo

The National Academy of Elder Law Attorneys has posted an article stressing the importance of having a living will (sometimes called a life support statement) drawn up.

While the spotlight this time last year on the Terri Schiavo case brought forth a great deal of discussion generated about life and death issues, the National Academy of Elder Law Attorneys (NAELA) stresses that the preparation of advance directives (living will, health care power of attorney and health care proxy) is extremely important for everyone over the age of 18. According to a Dec 2004 NAELA survey of elder issues, only one third of adults 35-49 have a living will.   

In addition, it's important to note the differences from state to state in requirements for advance directives. (See below.)   

NAELA advises consumers to consider five key questions when speaking with an elder law attorney about a living will, health care power of attorney and health care proxy:   

1. Who will serve as your Agent for Health Care? Who will serve as the alternate?   

2. Are there certain medical treatments or pain control measures you want or don't want?   

3. Do you wish to take or refuse any medication that may reduce or eliminate the ability to communicate?   

4. Do you have any particular directions regarding specific health care facilities, religious preferences, disposition of your body, donation of bodily parts for transplant or research, etc?

5. What directions will you provide related to end-of life decisions specifically regarding:   

* if you can no longer eat, drink or breathe on your own;      

* if you cannot function independent of machines;

* if you are confined to bed;   if you have no cognitive ability.    

Without a living will and other documents, would your spouse, children or parents know what you would want? Would they make the same decisions you would if you haven't put them in writing? Would they feel comfortable sustaining your existence in a vegetative state or if you could not communicate with them? Would they know if you would or would not want to continue living if you were to lose major physical or mental capacity? These are tough decisions to make under any circumstances and especially tough under duress.

What is a Living Will?    

A living will is a statement of how an individual would like to be treated in the event that he or she is unable to make decisions regarding the use of life sustaining medical treatment. A living will does not always order the withdrawal or withholding of life sustaining measures for a severely ill person. A living will can ask for continuous medical treatment regardless of an individual's medical condition. An individual may also assert that life-sustaining treatment be withheld or withdrawn if certain conditions are present.

You can read the rest of the article, including information about the different state requirements, here.