Are Your Clients’ Advance Directives Worth the Paper They’re Written On?

A few weeks ago, the ABA Center for Law and Aging held a webinar: “Effective Advance Care Planning: Are Your Advance Directives Worth The Paper They Are Written On?” The purpose was to enhance attorneys’ client counseling skills on this topic and their drafting of more effective advance directives. Today I’ll share some state-of-the-art thinking from these leading advance care planning experts on one of the topics discussed: appointing the health care agent.

Choosing a Health Care Agent
Attorneys can add important value to the advance directive drafting process and to the clients’ thinking about advance directives. With the Health Care Power of Attorney, you have the opportunity to help clients be thoughtful about their choice of health care proxy. The guiding responsibility: to think about the best way for the clients’ wishes to be honored.

A.    Share with clients the skills and qualities of the ideal healthcare proxy

The agent should be someone who can:

• advocate for the patient with doctors, hospitals, and the medical community generally;
• manage conflict within the family

And while there is no such thing as a perfect agent, there is always the “best-possible agent” from among the client’s options.

B.     Counsel clients not to assume that their spouse is the best choice

While it is understandable that most clients do choose their spouse or significant other as their agent, sometimes spouses are simply not the best equipped to fulfill this role. A spouse may not be able to handle conflict, for example. If you recognize this, you should advise the client to select another party. But even beyond the obvious cases where the spouse is the wrong choice, you should broach this concept with clients in ways that will make the topic comfortable and safe for them to consider and discuss:

• Introduce the idea in the third person (e.g. “some of my clients find that their spouse actually isn’t the best person to make these decisions…)
• Use specific client examples – real or fictional stories war stories of clients who inappropriately chose the spouse

C.    Do not appoint co-agents

While attorneys have differing opinions on this and states also vary, the experts who spoke to this point strongly recommended naming only one agent. Clients who want to appoint co-agents usually have multiple adult children whom they want to be involved.

Solutions for this include:

• Having an understanding that there is a single decision-maker but shared information between the agent and the other siblings
• Even including language in the HCPOA that the agent must reasonably consult with the other adult children – for instance before making an important decision

D.    Help clients make the family comfortable with their choice of agent

As counsel, the attorney’s role is also to help clients think about how the family moves forward after the death of the client. It’s important that the adult children or the spouse who is not chosen as the agent feels OK about this decision. Counsel your clients to talk about their choice of agent with the loved ones(s) whom they didn’t name – and to explain their thinking. Often this can be done in very compassionate terms, e.g. “I knew it would be too hard for you to make these decisions…”

Randi J. Siegel, MBA, is the President of DocuBank, the largest advance directives registry in the U.S., which ensures that the healthcare directives of its 190,000 enrollees are immediately available 24/7/365. Working with estate planning professionals since 1997, Randi frequently speaks at national estate planning conferences and has appeared on radio and television as an authority on registries. She is active in health policy pertaining to advance directives and serves as a Senior Fellow at the Jefferson School of Population Health in Philadelphia. Randi is an ongoing contributor to the Academy blog.

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