I recently received the following email from a client (names have been removed for privacy). I thought this might be something others have been questioning and it might be helpful to put in my blog.
I have been thinking about our estate planning a lot recently. Morbid – I recognize.
That said, should we add a standard clause in either the Living Will or Health Care Power of Attorney to include a dementia specific directive? That’s the end of life condition I fear most. Rather than wait, is there a plan that will make med decisions before that time comes? I would prefer to die at home, quickly and painlessly, on a Monday morning. But if that does not happen and I am not the same person because of dementia or Alzheimer’s, is there a way I can relieve my wife or my health care agent of burden? I do not know how to do it but I do not want to live years in a nursing home cage in diapers. When I am not me, how to I tell people to let me die?
(Attorney Mateya’s Reply):
First, thinking of these issues gives each of us a morbid feeling, but it is necessary. I prefer to say “No one likes to think of our own mortality, but not thinking about it will bring about hardship on our loved ones after we are gone.” Does that make it less morbid? Not by much, but it does give an explanation of why we address it. Thinking of our estate plan has less to do with ourselves and more to do with our loved ones.
Now, having said that, let me address your questions concerning the ‘while-I’m-Still-Alive” documents, in particular the Living Will & Health Care Power of Attorney. In years gone by, there were two competing Living Will forms that could be used. The first was very similar to the one I drafted for you and your wife. The second was much more detailed and dealt with specific medical situations and conditions. The advantage of the second form was that it could pointedly address the issues in the very manner that you raised them. The disadvantage was that the state of medical care changed before the ink was dry. That form, though loved by a vociferous minority, was put on the shelf. Let me tell you how the current documents you have drafts of, with the addition of a POLST document, will address your question on all fours.
First, the POLST: A Physician’s Order concerning Life Sustaining Treatment. This is a form that your physician can fill out for you. It goes with you everywhere you go, just like a Living Will & Health Care Power of Attorney. The difference is that it is a Physician’s Order. You can research POLST and learn more about it. POLST is not officially the law in Pennsylvania yet, though I have not heard of a physician or hospital or nursing facility refusing to honor one. This is a powerful document that I cannot draft. It is literally a Physician’s Order.
The way you can determine what happens to you if you are in the condition which you recited is to have a POLST, and have a Living Will and The Health Care Power of Attorney in place. The HCPOA document grants your agent the authority to make decisions for you if you should be unable to do so. It is your responsibility to speak with that agent now, before there is a need, and tell him or her what your wishes are. Be sure you are clear with them about what you do not want. Also, share your POLST with them.
The Living Will — strictly an end of life document — directs anyone reading it, what you want and do not want. This document works hand-in-glove with the other documents to insure that your wishes are carried out.
I hope this eases your mind about your chief concern. I wish I could promise you that nothing will change in health care or the law and that I was 100% certain of all that I just stated. I am not. This is why, frankly, I believe everyone should revisit his or her estate planning documents every three to five years. Things change.