As estate planning attorneys know, the basic estate plan includes a health care power of attorney and a health care directive or living will. Often, we give little notice to these documents. Clients do not like thinking of their own mortality or even the potential for a future illness. But, unfortunately, it involves issues we all must face eventually.
The health care directive/living will document or component is designed to express the client’s wishes regarding end-of-life decisions. When the client is no longer able to communicate their wishes and end-of-life decisions must be made, like whether to have a feeding tube inserted or other more invasive procedures should be undertaken. This document is critically important. A health care directive will spell out if the client wishes to be kept alive when there is no real hope of recovery from a terminal illness.
This document may seem unnecessary. However, the U.S. Supreme Court has made it clear in Cruzan v. Missouri that there must be “clear and convincing” evidence expressing a person’s wishes for removal of life support. Without that expression, such as that in a living will or health care directive, the state can require the person be kept alive through whatever means is necessary.
Sometimes, medical institutions, such as nursing homes, provide residents with forms to complete. However, as I wrote in a prior blog, and as a recent New York Times article detailed, the nursing home has a vested interest in influencing the resident to complete a form which requires the nursing home resident to be kept alive (and, in all likelihood, a continuing resident of the nursing home).
If the client wants to be kept alive or wants life support withdrawn, that is their choice. We can be instrumental in making sure that their true wishes are memorialized in a document which will meet the requirements set forth in Cruzan.
Now, there may be increasing interest in end-of-life planning because Medicare is proposing new rules which allow doctors, nurse practitioners, and other health care providers to be reimbursed for counseling regarding end-of-life matters. A final decision on the new Medicare rules will be made by this November. Here is a New York Times article concerning the new rules. This new counseling, once pejoratively labeled “death panels,” may bring new interest to health care directives and living wills.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (800) 846-1555
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