The Tender Talk about End-of-Life Planning

A regular part of the estate planning process involves a discussion with the client about selecting a line up of trusted individuals to serve as the client’s medical decision-makers. If the doctor determines that the patient has become incapacitated, there needs to be a designated proxy who can act on the patient’s behalf. Ideally, this person was selected by the patient beforehand in writing, because, otherwise, dreadful and lengthy court battles can ensue. I explain to the client that they need to choose the right person for this immensely difficult and emotional job. The person who might be just fine as Executor of the estate might be a poor choice as health care proxy.  The health care proxy will be responsible for the day-to-day health care decisions — should you continue to take this medication? should you have this elective surgery? Should you get a bridge or an implant when your tooth  is extracted? — as well as the major ones when life itself is threatened — should you be placed on a ventilator? should a feeding tube be installed? should the pacemaker battery be replaced?.

Many people have strong feelings about whether they would want certain mechanical means used to sustain their life if they become incapacitated and their quality of life has become terribly diminished due to various severe and chronic disabilities. The means to express these wishes is called a “Living Will” or “Advance Directive for Health Care.”  Essentially, the document speaks for a patient who can no longer express their wishes.

Advance Care Planning is the process of talking with your health care team and your trusted individuals about what you would want if certain things occur. In the hospital setting, the patient is asked to provide instructions which get written on a special form called a POLST that is then signed by the doctor and is placed in the chart as a physician’s order.   If a “living will” was previously signed, the instructions on the POLST form likely will match up with that document. But a patient can of course change their mind. The discussion needs to address the specifics of the condition being treated, the prognosis and potential outcomes, and the patient’s worries. The patient may feel that they never want to be maintained on a ventilator or kidney dialysis, but that they would still want artificial feeding and hydration if they could no longer chew or swallow. Alternatively, the patient may feel that they would want to be maintained on a ventilator no matter what, even if they could no longer interact with those around them due to severe incapacity, and even if this could go on for years.

If the patient is already incapacitated, it could be the designated health care proxy or the legal guardian who is engaging in these delicate discussions with the physician. Sometimes, shorthand is used such as “do you want a DNR put on his chart?” This decision-maker has the authority to complete the POLST on behalf of the patient. Either way, it is important that these serious issues be discussed in advance, since it can be so very difficult to make the necessary choices in the midst of a medical crisis if there was no prior guidance.

Call us for advice regarding estate planning, health care decision-making issues and elder care planning …….. 732-382-6070

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