2 Pitfalls in Getting Clients their Desired Results from Advance Directives

Here’s a recent cautionary tale that you might wish to share with clients about the importance of doing advance care planning – and doing it right. This case was brought to my attention by Hamline Law professor Thaddeus Pope, who writes a terrific blog about medical futility.

In March 2014, Terry Mace, age 43, went into cardiac arrest and hit his head on a concrete floor. Mace’s wife – from whom he had been “separated for 5 years and in the midst of divorce proceeding,” – instructed doctors to declare him DNR and discontinue his artificial nutrition and hydration.  Mace’s father successfully petitioned the court to be appointed Mace’s guardian with the intent of continuing Mace’s life sustaining treatment. However, Mace died a few days later because the hospital removed his artificial nutrition and hydration. There had been an apparent “miscommunication” between the hospital and Mace’s father, according to the father’s lawyer; Mace’s father did not understand that “comfort care” meant the removal of Mace’s nutrition tubes.

Here are the takeaways from this tragic story for your firm and your clients:

• Keep clients’ advance directives up to date.

Update the HCPOA as life situations change. As the Mace case illustrates, relationships may go south, whether it’s divorce or simply a bad falling out between friends or relatives. The person listed as the health care surrogate may pass away, become sick or incapacitated. Or, the person selected as the health care power of attorney may not be the same person they now want making decisions on their behalf five, ten, or twenty years down the road.

Clients may also change their minds about what kind of care they want over time. Research shows that quality of life situations that people say would not be acceptable can become more acceptable when people are actually faced with these realities.

If you don’t have an annual client maintenance program, which would definitely include advance directive updates, you might want to consider the “5D’s” updating guidelines created by Charlie Sabatino, J.D., the Executive Director of the ABA’s Commission on Law and Aging, which I also wrote about in a past blog post:

1. Death of family or friend  
2. Divorce
3. Receive a new Diagnosis
4. Experience a significant Decline in health
5. Reach a new Decade of life

Periodically reminding clients to update their directives is also a good way to bring clients into your office for a discussion, where you may discover other changes in their situations that require estate planning attention.

• Train your clients’ health care proxies on how to be good health care agents. Yes, agents need to start by knowing what the client’s wishes and priorities are. But beyond that, most appointed agents do not naturally know what to do or how to do it or what to ask. Do you tell them how to be a good agent? Do they understand that their job is to question doctors and hospitals? Do you tell them what questions to ask? They need to know what it means to be a good advocate on behalf of your client and HOW to fulfill that role. Doctors and hospitals are intimidating to many people, especially older folks, who feel uncomfortable asking questions and feel they are not equipped to do what may be perceived as “challenging” to doctors or hospitals. To request more info about helping your clients understand the role of the health care agent, click here.

It’s nice for clients to be able to say to “Yes, I have my advance directives, my loved ones know what I want and who I want making decisions for me. I can check that off my list.” However, this is not a task that clients can then forget about. Make sure you periodically remind your clients to review their agents and their wishes.

Randi J. Siegel, MBA, is the President of DocuBank (docubank.com), the largest advance directives registry in the U.S., which ensures that the emergency information and healthcare directives of its 200,000+ 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. A board member for the Center for Advocacy for the Rights and Interests of the Elderly and a member of the International Society of Advance Care Planning and the Coalition to Transform Advanced Care, she is active in health education and public engagement related to advance care planning and advance directives and serves as Pennsylvania liaison to the National Healthcare Decisions Day initiative. Randi is an ongoing contributor to the Academy blog.

Academy Guest Blogger
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