Brown & Associates - Attorneys & Counselors at Law, P.L.L.C.

PLANNING AHEAD CAN EASE HEALTH CARE DECISIONS LATER
(9/16/01)

How many of you have executed an Advance Health Care Directive or "living will" since 1991? For those of you who have, how many of you really thought through the process before you executed the instrument? If you did, have you sat down with your family members and health care proxy to discuss your intentions? What about your doctor? Have you talked over these issues with your primary physician so he or she understands what it is you want done depending upon your circumstances at the time?

It has been my experience that a great number of you don't want to think about being incapacitated or confronted by a life-threatening situation. That's perfectly understandable. No one wants to deal with unpleasant topics, let alone their own frailty or susceptibility to serious injury or worse.

Many of you may have a very well written health care advance directive and a durable health care power of attorney, but if you haven't discussed the terms of these instruments with your loved ones and medical care givers, you have only done half the job. Until you share your decisions on what you want done should you become incapacitated, you might as well put these documents on the shelf with those classics you bought years ago and never opened. They are nice to contemplate, but until you read and understand them and share their contents with those who will have to act upon them, they are of little value.

In Oklahoma, there are several documents which can impact health care decisions. The first document is the one we will be talking about in greater detail today-the advanced health care directive.

The second is the Durable Power of Attorney, which authorizes your agent-in-fact to make basic health care decisions (as well as other things) on your behalf if you are unable to make them for yourself. This could include authorizing surgery or specialized treatment.

The third document is the Do-Not-Resuscitate Order which states that if you become unconscious, medical providers are not to do anything to help you regain consciousness. This last is a very powerful document and one which should only be executed after full discussions with your loved ones, your medical providers, and your legal advisor.

In Oklahoma, the Advance Directive for Health Care is a specialized form which can not be altered. Your choices are severely limited in that you may select between one or two options or eliminate individual clauses all together, but you can not reword it or alter it in any significant way.

Oklahoma also limits the circumstances in which the directive is effective. That is, you must either be suffering from a terminal illness or be persistently unconscious before the directive will come into play.

The problem with any statutorily mandated form is that it is not very flexible. Such advance directives fail to give adequate guidance to your primary physician or care giver. By their very nature, they cannot address all of the situations that might arise. That is why communication with your family members, health care proxy and medical providers is so critical. Even though these topics are not something you really want to discuss, they are topics that need to be discussed with those who may have to make decisions for you in the future.

I have clients tell me that they are going to execute their directive now, but there really isn't urgency about reviewing their wishes with their son or daughter or trusted friend because "I'm in great health and I don't foresee any problems arising any time soon." That statement might make sense if the only thing that could way lay us would be an illness of some kind. Unfortunately, life is uncertain and we never know what will happen. I have had clients walk out of a physician's office after a complete physical examination and being told they were "fit as a fiddle" and have them die suddenly. I have clients that have had a car accident and find themselves in an emergency room before they even knew what happened. Life is uncertain. That is the only thing that we know with any degree of certainty. Things can happen. Things can change. Your health can deteriorate almost over night.

OK, you talked to everyone about your health care directive, they know it exists, now be sure that everyone who needs a copy has a copy. That means your health care proxy, your primary physician, the emergency room at the hospital where you would likely be taken, and anyone else who might find themselves involved in an emergency situation, such as your children and possible even a next door neighbor. Be sure to keep a copy with you, as well, especially if you are traveling. Your best laid plans are of little benefit if you are traveling in New Mexico or Arizona and your health care directive is lying on your desk back here in Enid.

Don't let your advance health care directive give you a false sense of security. It isn't the end-all and be-all of end-of-life planning. Just because you sign a document doesn't mean you can put it in the drawer and forget about it. Everyone at some time has misgivings about their future and sometimes these misgivings cause you to change your mind about what should be done in certain circumstances. Each situation is individual and distinct from every other one. Life is complicated. So is dying. So is planning for what will happen to you in the future. Your decision is going to be different if you are in the best of health than if you are in constant pain. Your decision will be different if you are looking forward to a long, health life than it would be if you know your time is limited, however a document cannot substitute for on-going discussions with those you love and those who have to act for you.

If you don't have an advance health care directive, or if you have one but you haven't looked at it in a long time, it may be time to sit down with your legal advisor, your family, and your physician. Talk through the difficult issues. Don't leave your loved ones in a vacuum. Any decision they have to make will be hard enough. It will be even harder if they have to guess about you would have wanted them to do.

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