So your clients complete a Health Care Power of Attorney and maybe a living will in your office. And you think you’re done helping them protect their medical wishes, right?  Think again.

A new study just discovered that for people with cancer, the simple act of completing a HCPOA is not enough to help them get them the care they want. Rather, in many cases it seems to become, essentially, a convenient crutch for clients to avoid important but difficult conversations about their preferences. The major takeaway of the experts:

People are substituting an HCPOA for conversations about health care wishes.

The researchers studied a group of individuals over 50 who died of cancer from 2000 – 2012, looking at their use of advance directives and the intensity of the care they received.

Specifically, they found that over these 12 years, cancer patients increased their execution of HCPOAs substantially — from 52% to 74%, but the percentage of patients talking with loved ones or doctors about their care preferences was unchanged. The one thing that did rise dramatically:  the percentage of patients receiving “all care possible.”  It rose from 7% to a whopping 58% — an eight-fold increase.

As a result, many health care agents are being left holding the bag for medical decision-making without any guidance from their loved one. The agents are, essentially, flying blind. As a related editorial in JAMA Oncology puts it, “the increasing use of power of attorney may be associated with patients relinquishing their opportunity to communicate end-of-life and living will preferences. Hence, patients are de facto forcing surrogates who are granted power of attorney to make decisions in a communication vacuum.”  (my emphasis)

In addition, as study author Dr. Amol Narang of Johns Hopkins School of Medicine explains, in a communication vacuum, “the proxy may default to ‘all care necessary.’”  In other words, some patients have probably received more intensive care than they would have wished.

Another actor needing to make changes:  physicians. Study authors and related commentators also point out that there is also a “communication gap” between patients and their physicians. But does this leave you, as an estate planning attorney, off the hook?  I would argue not.

What can/should you do as your clients’ trusted advisor? (and remember –40% of your clients, on average, will develop some form of cancer in their lifetime)

• At the very least, advise your clients that it is important to discuss their preferences with their named agents. And not just with a named spouse. Also with backup surrogates like adult children.

• Give your clients questions or prompts to use in discussing their preferences with agents.

• Give your clients’ appointed surrogates some guidance on how to act as an effective health care agent.

• Communicate with your clients’ primary physicians that you have created an advance directive for them. This can be the basis of an important clinical discussion between doctor and patient about wishes. (In light of the recent Medicare proposal to reimburse physicians for time spend on advance care planning, — see my last blog post – physicians will welcome your initiation of this activity. It also has the side benefit of being a marketing opportunity for your firm.)

If you would like guidance or tools on any of the above suggestions, please email me for materials.

Randi J. Siegel, MBA, is the President of DocuBank (docubank.com), which ensures that the emergency information and healthcare directives of its 200,000+ enrollees are available 24/7/365 through the largest advance directives registry in the U.S., as well as access to an online safe for storage of digital assets and other vital documents. 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 member of the Philadelphia Estate Planning Council, the International Society of Advance Care Planning and the Coalition to Transform Advanced Care, Randi is active in health education and public engagement related to advance care planning/advance directives. She serves as Pennsylvania liaison to the National Healthcare Decisions Day initiative and as a board member of the Center for Advocacy for the Rights and Interests of the Elderly. Randi is an ongoing contributor to the Academy blog.

Academy Guest Blogger
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