After 9/11, Joy Chambers believed so much in the importance of planning for the future that she started writing a book. That book, titled “Wills, Living Wills and Powers of Attorney,” is due to be released in August. The information contained within is timely, not only because of 9/11, but because of the highly publicized case of Terri Schiavo.
Because of the recent media blitz surrounding the lack of a living will for Schiavo, estate planners around the country are getting an increased volume of calls inquiring about living wills.
Deborah G. Matthews, an estate planning attorney licensed in Virginia, Maryland and the District of Columbia, said that a living will contains a person's direction for medical care when the person cannot communicate with health care providers.
“In a health care proxy or medical power of attorney a person names an agent to make medical decisions and advocate for the directions contained in the living will. In Virginia both documents are combined into a single document — an advance medical directive.”
Many attorneys will provide the forms free of charge, either as part of an estate planning package or as a single entity. Forms can also be found and downloaded from the internet; Chambers, an attorney at law who specializes in wills, probate, guardianships and problems of seniors, has a copy of one on her Web site, www.joychamberslaw.com. Forms can also be obtained from local hospitals.
“I’ve never had a client in 20 years who didn’t want a living will,” Chambers said. “The most important thing is the piece of mind they get — knowing that their wishes will be known.”
“For every client for whom I prepare a will or a trust I also draft an advance medical directive. My Virginia advance directive also includes an extensive exhibit that details what the agent is able to do with the authority granted by the document,” Matthews said.
WHILE MANY PEOPLE discuss their wishes, the Schiavo case shows the importance of putting those wishes in writing. One of Chambers’ clients, Paul Roth, said that he and his wife have been talking about this for years, but never did anything about it. They are now in the process of preparing one for themselves.
“Joy has made this all possible,” Roth said. “She has demystified it and made it easier.”
While most forms are some variation of the one approved by the Virginia General Assembly in the Health Care Decisions Act, attorneys have adapted forms slightly. For example, Gary Lonergan, an estate planner located in Alexandria, has added a provision for HIPPA. This gives the health care agent access to all of the records of the person they have been designated to make decisions for.
“The presumption in Virginia, like many states, is that the health care providers are to provide all available medical care including when a life-threatening condition is present. If life-prolonging treatment is not what you want then you can override that presumption by providing instructions for your own care — with an advance directive,” Matthews said. “Every client I have seen has wanted an advance directive. Some use their directives to state no life-prolonging treatment is to be provided, while others direct that all treatment is to be offered. The directive is designed to permit you to provide directions for yourself — whatever those directions might be.”
ADVANCE MEDICAL DIRECTIVES have two components. The first part states the wishes of the person preparing the directive; they can specify if they want no food and water; no food; no water; or anything else. The second part designates the health care agent. This agent will make all medical decisions for the recipient if that person is rendered incapable of making decisions for themselves.
“The Schiavo case was exactly on point. She didn’t say who she wanted to be her agent/decision maker,” Chambers said.
Forms need to be signed and witnessed by two people who are not blood relatives. A durable Power of Attorney can also be prepared but that is a separate process and typically done by an attorney. Once prepared, copies of the Advance Medical Directive should be sent to the person’s doctors and local hospitals.
“Having an advance medical directive is good, but it is useless if your health care providers or loved ones don't know that it exists,” Matthews said. I tell my clients to be sure that every single one of their health care providers has a copy in the patient file and to carry a copy when they travel. I encourage my clients to talk with their health care providers and loved ones about the type of care they want to receive.”
WITH THE AMOUNT of publicity surrounding the Schiavo case, there is little question as to why the preparation of this document is so important.
“It’s a gift to the people that they’re leaving behind,” said Patience Alexander, another estate planner in Alexandria. “Even if they don’t want to do complete estate planning, everybody should at least consider having an Advance medical directive.”
Alexander suggests including the form in a package of information available at the “back door.” Included in this package would be medical card, list of health needs, health insurance cards and contact information. Having this information on hand in case of an emergency can be invaluable.
“No one is too young to plan for his or her own care. It is a gift to your family and loved ones to give them your written instructions and to name someone to act and advocate on your behalf,” Matthews said.
Lonergan believes that there are three reasons for preparing an advance medical directive. It takes away the uncertainty; doctors and hospitals are used to dealing with the form; and if the agent wants to make a change for his recipient (moving hospitals, changing doctors), it will be easier for him to do so.
“The Schiavo case is a terrible situation for all concerned,” Lonergan said. “They see the ‘parade of horribles’ and want to prevent their family from going through this.”
While Lonergan said that the majority of his clients choose to execute an advanced medical directive, some do not. He believes that people put it off because it’s something that they don’t want to talk about.
“It makes people focus on the dying process and they have to think about their own mortality,” Lonergan said.
“It’s a personal choice — so intense and of such magnitude,” Roth said. “There’s nobody I trust more than my wife and she feels the same about me. It’s crucial that we’re the ones making the decisions.”
Despite all that, Roth is concerned that even with the form, there can still be problems. Nothing is ironclad and anything can be challenged. Yet, he feels that there’s only so much you can do.
“Without it, uncertainty is obvious,” Roth said.