Emotional reactions to the thought of end-of-life decisions prevent many people from planning for their future health needs; nevertheless, it is vital to stress to your clients that “planning now for your future health care is one of the most important acts you will ever do for yourself and your loved ones.” Advance Directives: Your Critical Action Plan, aarp.org, http://assets.aarp.org/external_sites/caregiving/end/advance_directives.html.
Even after the patient has executed an advance directive, it is critical to encourage a continuing conversation among the patient, medical providers, health care proxy and loved ones. Ongoing discussions between the patient and health care proxy may be particularly important to those patients who prefer to appoint a health care proxy with broad authority to carry out end-of-life decisions that are guided by the patient’s general values and goals, rather than dictated by the terms of an overly specific living will. U.S. Department of Health & Human Services, Agency for Healthcare Research and Quality, Clinical Decisionmaking, http://www.ahrq.gov/research/jun05/0605RA5.htm. A continuing conversation will ensure that the patient’s wishes are understood, and that medical providers and others involved do not have a religious, moral or other policy or belief that may result in a refusal or inability to honor the terms of an advance directive. American Bar Association, Division for Public Education, Law for Older Americans: Health Care Advance Directives, https://www.abanet.org/publiced/practical/directive_review.html.
In the best of circumstances, the patient, the family, and the physician have held discussions about treatment options, including the length and invasiveness of treatment, chance of success, overall prognosis, and the patient’s quality of life during and after the treatment. Ideally, these discussions would continue as the patient’s condition changed. U.S. Department of Health & Human Services, Agency for Healthcare Research and Quality, Advance Care Planning: Preferences for Care at the End of Life, http://www.ahrq.gov/research/endliferia/endria2.htm (further citations omitted).
Perhaps the best advice you can give to your clients is to “keep in mind that the [advance directive] form is to aid, and not take the place of, communication.” American Bar Association, supra, https://www.abanet.org/publiced/practical/directive_review.html.
A patient’s wishes concerning medical treatment may change over time, depending upon factors such as advancing age, medical technologies and breakthroughs, changing responsibilities for the care of others, involvement with the end-of-life decisions of others, or the diagnosis of a significant illness. In addition, a patient may move to a new state, where there may be potential legal differences with respect to the effectiveness and requirements of an advance directive. Therefore, the properly considered advance directive “should be the end product of the planning process, repeated at various turning points” in the patient’s life. Id.
Retaining the Advance Directive for Health Care
Because an advance directive that no one knows about will do nothing to effectuate a patient’s medical wishes, the patient should store the original document in a safe place but should consider giving a copy to his or her health care proxy, medical providers, family members, and lawyer. The patient should also let these individuals know where the original is being stored.
The patient may carry a wallet card to alert third parties about the patient’s advance directive, and the identity of his or her health care proxy. Id.
The Power Is In The Patient’s Hands
In 2003-2004, it was estimated that only between 20 and 25% of Americans had executed advance directives. AARP Bulletin Today, A Matter of Life and Death, http://www.aarp.org/heath/articles/ livingwill.html; Business Wire, Legal Zoom National Survey Shows Increasing Number of Americans With Living Wills, June 12, 2007, http://www.allbusiness.com/services/business-services/4349542-1.html. Although the 2005 Terry Schiavo case brought the issue of end-of-life decision-making to the national forefront, more recent polls indicate that the number of Americans with advance directives has inched to only about 25 to 29%. Business Wire, supra, http://www.allbusiness.com/services/business-services/4349542-1.html; Death with Dignity National Center, Lester, W., Poll: More Americans Have Living Wills, Associated Press Jan. 5, 2006, http://www.deathwithdignity.org/news/news/forbes.01.05.06.asp.
Though issues surrounding end-of-life decisions are seldom easy, it is important to counsel your client that these documents represent “a critical statement that your life is your own, and so is your death, and that the decisions about both belong to you.” Advance Directives: Your Critical Action Plan, supra, aarp.org, http://assets.aarp.org/external_sites/caregiving/end/advance_directives.html.