Why Do So Few Americans Have Advance Directives?
By Kluger, Kaplan, Silverman, Katzen & Levine, P.L. May 4, 2016
Kluger Kaplan’s Jamie Zuckerman explains in Wealth Management the importance of advance directives and why – regardless of age and health – everyone should consider one.
By Jamie Zuckerman
Advance directives enable individuals to exercise control over their futures and ensure that the care they receive at the end of their lives is pursuant to their wishes. Yet, the majority of individuals have not taken advantage of advance directives and the opportunity to control their futures.
There are two forms of advance directives—instruction directives and proxy directives. An instruction directive is one in which a person leaves instructions for his or her future care, but does not appoint an agent to carry out the directions. A living will is the most widely used instruction directive. A proxy directive is one in which instructions are combined with the designation of a person to carry out instructions or to make decisions for the person executing the document. A durable power of attorney for health care or property is an example of a proxy directive.
To record his or her medical preferences, an individual will need to execute written documents detailing them. A living will allows the declarant to document his or her wishes concerning medical treatments at the end of life if the individual is unable to speak for themselves. A health care power of attorney appoints someone to make health care decisions—and not just decisions regarding life-prolonging treatments— on one’s behalf. The appointed health care agent (also called an attorney-in-fact or proxy) becomes the patient’s spokesman and advocate on a range of medical treatments the patient sets out in the document. This type of document is sometimes referred to as a health care proxy, appointment of a health care agent or durable power of attorney for health care.
Immediate effective powers, especially for the holder of the health-care power of attorney, are easier for the agent to exercise. Springing powers take effect when the person asked to rely on them determines that a specified event has occurred. This ease of use by the agent can be both positive and negative. With respect to the holder of a power of attorney over property, individuals are usually not comfortable giving an agent immediate authority. For individuals who are young and healthy, the power of attorney may exist for many years before it is used. An individual might also lack unfettered trust in the contemplated agent. If the agent’s authority is springing, the triggering event in the instrument should be very clearly described. Third parties must be able to determine when the power takes effect.
Existing state laws vary in what must and may be included in advance directive documents. The states also vary widely in the defined standards that govern a surrogate’s decision-making on behalf of an incompetent patient. It’s important to complete and sign advance directives that comply with your state’s law. One state’s advance directive does not always work in another state. Some states do honor advance directives from another state; others will honor out-of-state advance directives as long as they are similar to the state’s own law; and some states have not yet come out on either side. Some advance directives may require supporting documentation. Virtually all jurisdictions, however, recognize the importance of self-determination and provide that a person’s articulated wishes contained in an advance directive should be honored post-competence, just as a person’s wishes about testamentary disposition of property are given the utmost deference.
No one should fail to plan for a loss of decisional capacity, whether temporary or permanent. Powers of attorney for property and health care have spared the necessity of establishing a guardianship for an incompetent individual. A person of good repute who has the principal’s best interest at heart and is assertive but not overly controlling makes the ideal agent. The best health-care agents are attuned to matters of personal care. The best agents for a power of attorney over property are good money managers. Optimally, properly crafted advanced directives will help enable an individual to complete life without the necessity of establishing a guardianship, which is usually the most restrictive alternative. Unfortunately, the creation of advance directives does not always prevent guardianship litigation.
Occasionally, a person’s appointed agent in a power of attorney or health care proxy does not act in a responsible manner or abuses their authority and takes advantage of an incapacitated individual. In these instances, a guardianship proceeding can be useful to review the situation and the Court has the authority to revoke a power of attorney or health care proxy. Sometimes, even though advance directives are in place, a disgruntled family member may commence a guardianship proceeding and seek revocation of the advance directives. Effectively implementing a plan of action with respect to the future, however, can significantly reduce the likelihood that the individual will have their civil rights compromised through a guardianship proceeding. The less restrictive alternatives to guardianship (such as living wills with clear guidance and durable powers of attorney over heath care and property) help defend against (and deter) an unplanned for guardianship proceeding.
Choices about end-of-life care can be stressful for patients and family members, especially if there are conflicting desires. Decision-making on behalf of an incapacitated person is greatly simplified when the individual has left an advance directive. To ensure that wishes are honored, individuals should have discussions with their family, friends, and physicians about their intentions and execute advance directives, ideally, when healthy. Advance directives should never be undertaken in secret or in the absence of discussion among loved ones/next-of-kin. Early and frequent communication helps to ensure that individuals can receive treatment in accordance with their personal beliefs, whether religious or otherwise. Mutual understanding among family members is crucial to ensure that these directives are honored should a medical crisis arise. In cases of medical futility, in the absence of advance directives and a clear consensus from family and physicians, intervention by a hospital-based ethics committee may be required.
While there is no perfect way to protect the wishes of a person who lacks capacity, advance directives provide a voice for those otherwise unable to express their wishes.