Do Your Clients Appreciate the Need for Emergency Medical Planning?

10/15/18 | WealthCounsel Quarterly | Daniel McKenzie, JD

From personal experience and observations, the most common motivation for people to get serious about estate planning stems from either (1) a concern about who will receive their assets when they die, or (2) who will take care of their young kids. While asset protection, tax efficient distribution plans and guardianship provisions for minors are critical foundations of proper estate planning, an often underappreciated—arguably more critical—aspect is emergency medical planning.

I frequently emphasize to clients, and even more so to potential clients, that providing instructions and naming the people who will oversee their medical care during an incapacity event may be the most important reason to put a plan in place now. In fact, the odds in the United States of becoming disabled before the age of 65 are 1 in 3.^[1] There are 5.7 million Americans living with dementia, and the number is expected to rise to 14 million by 2020.^[2] Add to this the fact that half of Americans have at least one risk factor for stroke,^[3] and that each year, approximately 795,000 people suffer a stroke.^[4] Together, stroke and dementia comprise the two most significant causes of serious, long-term disability in the U.S.

Still, many clients fail to appreciate the likelihood they will become incapacitated during their lifetimes. Perhaps this is because disabling accidents or medical conditions feel less common and less inevitable than death. It may also be because clients have a narrow view of what it means to be disabled. They may be picturing somebody whose mobility is limited, but not necessarily people suffering from depression, a traumatic brain injury, PTSD, dementia, and other “invisible disabilities.” However, as I note to my clients, it is unusual for someone to go from being healthy to dead with no intervening decline. People are also living longer with serious illnesses due to advances in medicine. It is common for people to suffer several health setbacks and recoveries during their lifetimes. Those setbacks need not be life-threatening to present difficult challenges surrounding what type of medical care will be provided and who has the authority to oversee it.

While probating the estate of a deceased person can present its challenges, obtaining the right to speak on behalf of someone who is still alive is often more difficult. Unlike with death, where there is a death certificate and no question that the decedent can no longer handle his or her affairs, proving to a court that it should subvert an individual’s financial or medical autonomy is a more challenging case to present.  This is especially true if that court has no instructions on the matter from the disabled party.

In golf, they say you “drive for show and putt for dough,” meaning it is the less glamorous detail work that often separates good golf players from bad ones—not the big, showy muscle shots that weekend warriors spend most of their time practicing. Translating that wisdom into the world of estate planning, while the post-death distribution of property gets all the publicity, it may be the “ancillary” documents delegating decision-making authority for you during incapacity that may be more urgently needed. This is an important point to make with potential clients who are single or with modest wealth, and who are asking you why they should bother with estate planning.

With that in mind, let us look at the documents typically used to convey needs and wishes around medical events. We will also discuss how you can provide your clients greater value by counseling them to select the right person for the particular task to be performed, rather than simply picking the closest family member who may not have the skills needed to fill that role.

Medical Power of Attorney

The cornerstone document for medical planning is the Medical Power of Attorney. Throughout the estate planning process, I frequently advise my clients that the person they put in charge is perhaps more important than the content of the documents or the specifics of the plan. Good people can save a mediocre–or even a bad plan–by the choices they make. However, incompetent people who make bad choices can make a mess of a good plan. Nowhere does this seem more accurate than with the Medical Power of Attorney.

There are a few reasons for this assessment. First, the typical Medical Power of Attorney is more focused on granting powers to your agent than it is on providing specific instructions about what decisions you prefer your medical agent to make. Some Medical Powers of Attorney include general philosophical statements about the standard of care for pain management and the importance of maintaining the principal’s dignity. These are generic statements with which just about anyone would likely agree. While general guidance is better than nothing, your medical agent will need to make specific decisions when called into action, not just general ones. The number of scenarios in which a medical agent may have to act are too numerous and too varied to provide specific instructions. This likely will mean that the medical agent must decide about situations that may not have been anticipated by anyone, with only minimal guidance about what the principal would have wanted.

Second, unlike the financial fiduciary positions (trustee, personal representative, and financial agent), it’s difficult to identify when a breach of fiduciary duty has occurred within the context of medical decisions. Choosing a course of treatment is a complicated endeavor which relies heavily on factors outside the medical agent’s control and almost always requires specific knowledge few medical agents have. Most people err on the side of intervention, which may not be what the principal would have wanted, because they are afraid that not taking any action is worse than choosing whatever might stand a chance, however slim, of helping the principal’s health improve. Has an agent who allows intubation of a principal who expressed a desire not to be intubated breached their duty to the principal? What if that intubation saves the principal’s life and he or she makes a full recovery? Unlike financial management, where damages can be measured and impartially evaluated, it is less clear what makes a medical agent’s decisions good or bad.

Third, medical decisions are personal and often based on emotional or spiritual values. This is one of the main reasons so many families fight over medical decisions. People have widely divergent attitudes toward medical treatment, and there are more alternatives to “Western medicine” than ever before. It is increasingly common for at least one family member to view acupuncture, Chinese herbs, a macrobiotic diet, or nutritional supplements as safer and more effective than traditional medical interventions like surgery, chemotherapy, or radiation. Whether that person or someone else in the family is the medical agent, these differing beliefs can lead to challenging situations and decisions.

Even within the Western medicine paradigm, disagreements can easily occur over how much treatment someone should receive when he or she is of advanced age, has a terminal condition, or otherwise has a diminishing quality of life. A family member is more likely to feel comfortable expressing their disagreement with the medical agent or the attending physician because it can be perceived as loving concern. Disputes over distributing assets are more likely to be viewed as greed, which may cause families to use the medical issues as the battleground for their underlying relationship dysfunctions. While people often believe their family members will not fight over their medical care, it is common to hear about court battles where families disagree over the right course of medical action for their loved one (e.g., Terry Schiavo, Sumner Redstone, and Casey Kasem).

It is therefore important to remind to your clients that the medical agent requires a different skill-set than the financial agent. While every fiduciary must be ethical, diligent, detail-oriented, and good with money, the medical agent needs to understand the principal’s views on medical care and end of life scenarios, and also have the backbone to stand up to family members, and maybe even medical experts, who may disagree.

End of Life Decisions

Advance Directives

My clients seem to fall into two categories when it comes to their Advance Directives: (1) they agonize over it for an extended period, or (2) they blow right through it with no sentimentality. Neither approach seems entirely appropriate. The Advance Directive is worthy of significant reflection even though it is a limited document that covers only two improbable events: a terminal condition and a persistent vegetative state. It may be important to point out to clients that most lives end in ways not anticipated in an Advance Directive. Even with an Advance Directive in place, there are still many situations where your medical agent may need to make difficult life and death decisions about how much treatment to continue providing after a situation has become dire.

No matter how much intervention the client may elect to receive, it would be difficult to describe a “good” outcome in an end-of-life scenario; life, as they had been living it, will have ended, and the clients agonizing over their choices need to understand this. The most significant advantage to completing an Advance Directive is not to prevent death, but to ease a loved one’s acceptance of it, or to remove the burden of choice from a close family member. The goal is to make a client’s wishes as clear as possible.

Another key issue to bring up with clients is the relationship between an Advance Directive and a Medical Power of Attorney. Both documents reference each other and require a decision from the client on which document will prevail. This is another situation where choosing the right medical agent is essential, and where that individual’s perceptions and values related to the medical field come into play. Those clients who wish to remove the burden of choice from an adult child or spouse will likely prefer their wishes as stated in their Advanced Directive to prevail. Clients who have experienced medical professionals making mistakes, or who believe in miracles or alternative methods of care, will often authorize their medical agent to override the wishes they have stated in their documents. Either way, the advising attorney should monitor the process to ensure that both documents are consistent in their message.

Do Not Resuscitate

Clients frequently confuse Advance Directives with “Do Not Resuscitate” (“DNR”) orders. Although both deal with instructing life to end even though doctors might prolong it, these documents cover very different circumstances and do not overlap with each other. I have had clients who thought they needed no Advance Directive because they have a DNR. This is incorrect.

People can suffer an accident or other medical event at any time that puts them into a situation where they would die but for extraordinary medical treatment that can keep their heart beating, their lungs breathing, and their bodies nourished and hydrated. An Advanced Directive guides caregivers regarding the continuation or cessation of such interventions after doctors have determined whether the patient is likely to recover. Every adult should have this document in place.

A DNR prevents the administration of life-prolonging treatment, a course of action that would seem appropriate only for a small minority of people. While there are probably gentler ways to say it, I tell clients the DNR is recommended for situations in which you have determined that, if given the chance to die, you would take it, either because you are in a lot of pain or discomfort or because your quality of life has deteriorated below the point at which you feel it is worth prolonging. I have encountered young, seemingly healthy clients who believe a DNR will protect them from disability by allowing them to die rather than make a less-than-full recovery. However, a true DNR requires a doctor to sign off on it, and it is difficult to enforce outside long-term care environments or nursing facilities. In my experience, the DNR is a medical document and not a standard part of an estate plan^.[5]

HIPAA Concerns

While the Medical Power of Attorney and Advance Directive should help ensure your medical wishes are known and followed, they do not necessarily help with family harmony. Because clients often fail to appreciate how easily disagreements over medical care for an incapacitated loved one can devolve into the worst family fights, many people are tempted to head off this possibility by naming multiple medical agents—all serving concurrently. But as I point out to my clients who suggest this, the only reason you would need more than one agent is if they disagree with one another. But if they disagree, how is having them all deputized to make decisions going to resolve the dispute?

More likely, the disagreement between the parties will quickly become apparent to the treating medical facility, probably through conflicting instructions, and that facility will promptly instruct the parties to get a court to determine who has final say, perhaps through a guardianship proceeding. The last thing a medical institution wants is to take on the liability associated with trying to be the mediator for a family dispute.

One way to help clients try to keep everyone happy is through a HIPAA release – a document that gives no one decision-making authority, but lets everyone participate in the conversation. Medical facilities have grown increasingly tight-lipped about patient medical information due to enforcement of patient confidentiality by the Office for Civil Rights, which has seen increasing numbers of complaints each year and fines in the millions of dollars.^[6] Although children, siblings, and significant others could talk to a patient’s doctors they might not even be able to confirm which facility is providing treatment without written authorization from the patient allowing for disclosure of this simple, but confidential, information.

The Alternative to Proactive Planning: A Court Appointed Guardian

Depending on how difficult, time-consuming, and expensive the probate process is in your state when someone dies, it may be critical to plan so it avoids death probate. “Living probate”, on the other hand, is difficult in every state, and every estate plan’s goal should be to avoid it.

In a living probate, a court has to determine (1) who is the best person to appoint as the guardian to speak on behalf of someone who cannot speak for himself or herself (the ward), and (2) whether the ward is in a condition that justifies the extreme step of taking away the right to speak for himself or herself. This inquiry necessitates a court appearance, expert witness testimony on the condition of the proposed ward, and a thorough inquiry into the background and motivation of the person attempting to be the guardian. It cannot and should not be an easy process, and the costs, attorney’s fees, and expert fees frequently start at several thousand dollars, even if everyone is on the same page and the process goes smoothly. If the family does not agree on whether a guardian is needed or who the guardian should be, all bets are off on how expensive living probate might get.

An Area of Increasing Concern: Alzheimer’s and Dementia

As baby boomers enter the last quarter of their lives, an increase in incapacitating age-related diseases, especially Alzheimer’s and other forms of dementia, is being seen and is expected to grow. Statistics predict a 14% rise in the number of dementia cases over the next eight years.^[7] There is widespread concern these memory-related diseases, which can require extraordinarily expensive medical care and oversight, sometimes lasting for decades, will place an overwhelming burden on our healthcare system, Medicare, Medicaid, private health insurance providers, and family members who may be left to provide care by themselves. Given the increasing prevalence of these challenging medical conditions, there is concern whether our standard incapacity documents are up to the challenges they present.

Our documents are there to help determine whether to maintain life-sustaining treatment. However, although important to have these instructions in place, they are of little to no value for someone who is responsive, conscious, able to consume sustenance by mouth, and not receiving life-sustaining medical treatment—or even artificial food and hydration—that can simply be stopped. For people in this increasingly common condition, something beyond the usual end-of-life questions may be highly valued.

For this situation, a movement is afoot to create and gain acceptance for specialized Advance Directives specific to dementia and diminished memory circumstances.  The scenarios these specialized Advance Directives are aimed to address are even tougher to think through than the standard Advance Directive questions.

Aid in Dying Statutes

A long-running debate across this country, and one resulting in statutes and voter-passed initiatives, is “aid in dying” for people with terminal or particularly painful diseases (sometimes known by the less euphemistic term, “assisted suicide”). It has been nearly 30 years since Dr. Jack Kevorkian launched “physician-assisted suicide” into the national consciousness. No state had legalized anything like it. Today, six states—Washington, Oregon, California, Colorado, Hawaii, and Vermont—along with the District of Columbia – have passed some version of a law that makes it possible for patients to end their life assisted by a doctor. Five other states have no laws criminalizing the practice. The practical availability of those processes, and a lawyer’s involvement in them, vary widely.

While the details of each state’s Aid in Dying laws differ, they are all intended to remove criminal liability from an individual who either prescribes or helps to procure lethal medication for patients who have expressed the desire and intention to use the drugs to end their lives. All six states and the District of Columbia require significant waiting periods and a written request, and mandate the physician to provide information regarding palliative care options and referrals to mental health professionals, if necessary.

Significantly, each law requires that a patient interested in obtaining the life-ending drugs must: (1) be mentally competent to decide to end their life, and (2) have a medical diagnosis of less than six months to live. Aid in Dying laws would therefore not protect an agent acting under a Medical Power of Attorney from liability in assisting a terminally ill but mentally incapacitated patient from procuring and ingesting a lethal drug. It is possible for the patient to be so ill they cannot obtain the drug for themselves (for instance, if they cannot drive to the pharmacy or sign the release forms). In such instances, an agent acting under Medical Power of Attorney could conduct the process on behalf of the dying patient as long as they do not assist the patient in ingesting the drug, only in procuring it.

In addition, no laws currently allow an individual to state their wishes for assisted suicide in advance. Advance Directives and other end-of-life documents cannot include legally enforceable provisions to enable caregivers to procure lethal drugs for the principal. Laws on this topic will likely change in response to patient feedback and evolving attitudes toward assisted suicide—or even the withholding of hydration and nutrition^.[8] Attorneys involved with end-of-life planning should pay careful attention to legislation and court decisions.

Conclusion

As difficult as it may be for those of us who do this for a living and hear the horror stories about situations where no medical planning had been done, clients may fail to appreciate the importance of medical and end-of-life planning to their overall estate plan. While many clients may think they can glide right past these issues, their ignorance about the frequency of need for medical assistance provides the attorney with an opportunity to add value where the client may not have expected it.