By Patrick J. Kelleher, Esq., Elder Law Attorney
Disability Planning is one of the most overlooked areas in Estate Planning. You will likely become disabled and incapacitated before Mother Theresa calls you to the Pearly Gates of Heaven. When you do not have the newer updated Disability Planning documents in place your affairs can end up in expensive and stressful Probate Court proceedings for your loved ones. You may think your living will is in order, including instructions regarding resuscitation commonly referred to as a DNR (do not resuscitate). While your wishes in a living will may be appropriately documented, that does not guarantee the instructions will be carried out as you stated. The frightening truth is that mistakes about your end-of-life instructions are made while you are at your most vulnerable. Dr. Monica Williams-Murphy, medical director of advance-care planning and end-of-life education for Huntsville Hospital Health System in Alabama has said, “Unfortunately, misunderstandings involving documents meant to guide end-of-life decision-making are surprisingly common.”
The underlying problem is that doctors and nurses have little if any training at all in understanding and interpreting living wills, DNR orders, and Medical Orders for Life-Sustaining Treatment (MOLST) forms. Couple the medical professionals’ lack of training with communication breakdowns in high-stress environments like a hospital emergency ward where life and death decisions are often made within minutes, and you have scenarios that can lead to disastrous consequences.
In some instances, mix-ups in end-of-life document interpretation have seen doctors resuscitate patients that do not wish to be. In other cases, medical personnel may not revive a patient when there is the instruction to do so resulting in their death. Still other cases of “near misses” occur where problems were identified and corrected before there was a chance to cause permanent harm.
There are some frightening worst-case scenarios, yet you are still better off with legal end-of-life documents than without them. It is imperative to understand the differences between them and at what point in your life you may change your choices based on your age or overall health. To understand all of the options available it’s important to meet with trusted elder law counsel for proper counseling and document preparation and to review your documented decisions often as you age. In particular, have discussions with your physician and your appointed medical decision-maker about your end-of-life documents and reiterate what your expectations are. These discussions bring about an understanding of your choices before you may have an unforeseen adverse health event, and provides you the best advocates while you are unable to speak for yourself.
There are several documents that may be appropriate as part of your overall plan. Each of those are discussed below, and we are available to answer any questions you may have about them.
A living will is a document that allows you to express your wishes about your end-of-life care. For example, you can document whether you want to be given food and hydration to be kept comfortable, or whether you want to be kept alive by artificial means.
A living will is not a binding medical order and thus will allow medical staff to interpret the document based on the situation at hand. Input from your family and your designated living will appointee are also taken into account in your best decision making strategy while you are incapacitated. A living will becomes activated when a person is terminally ill and unconscious or in a permanent vegetative state. Terminal illness is defined as an illness from which a person is not expected to recover even though they are receiving treatment. If your illness can be treated this would be regarded as a critical but not terminal illness and would not activate the terms of your living will.
Do not resuscitate orders (DNRs) are binding medical orders that are signed by a physician. This order has a specific application to cardiopulmonary resuscitation (CPR) and directs medical professionals to either administer chest compression techniques or not in the event you stop breathing or your heart stops beating. While your living will may express a preference regarding CPR it is not the same thing as a DNR order. A DNR order is specifically for a person who has gone into cardiac arrest and has no application to other medical assistance such as mechanical ventilation, defibrillation, intubation, medical testing, intravenous antibiotic or other medical treatments. Unfortunately, many DNR orders are wrongly interpreted by medical professionals to mean not to treat at all.
Medical orders for life-sustaining treatment forms (MOLST forms) are specific sets of medical orders for a seriously ill or frail patient who may not survive a year. This form must be signed by a physician, physician assistant or nurse practitioner to be legally binding. The form will vary from state to state and of the three instructive documents the MOLST is the most detailed about a patient’s prognosis, goals, and values, as well as the potential benefits and risks various treatment options may bring about.
An Enhanced Elder Law Health Care Proxy for health care decision, sometimes referred to as a health care directive, allows you to name an agent to make decisions for you if you are unable to. Unlike a living will which only covers end-of-life decisions, a power of attorney for health care decisions allows the agent to act at any time that you cannot make decisions for yourself. An often over looked legal document and a must is the HIPAA Authorization to get access to a loved ones medical records in a time of need. Another newer disability planning document we created is Instructions to My Health Care Agent where you can spell out what time of things you like that would enhance your quality of life if you were admitted to a nursing home. Also, do not forget a written Spoon Feed Directive which spells out that you do not want the nursing home staff keeping you alive by feeding you if you are fully incapacitated.
We can help you determine which disability planning best suit your current needs and help you clearly state your wishes in those documents. We look forward to hearing from you and helping you with these important planning steps.
Next steps: Attend our FREE educational Estate Planning & Elder Law workshop by calling 781-871-7526 or email firstname.lastname@example.org because seating is limited and our Learning Center fills up quickly!
About the Author: Patrick Kelleher’s mission as an Elder Law Attorney is to teach you to be an “informed consumer” so you can put your estate plan in place to protect what you have for the people you love the most before your time runs out! Patrick does this with his “Elder Law Care” Television show and by teaching free educational Estate Planning & Elder Law workshops at his Learning Center in Hanover. ∞
Reprinted from the January 2019 edition of the South Shore Senior News.