When do I need Health Care Directives?

(This article was originally published in the Wakefield Daily Item)


Q.   My wife has been in and out of the hospital over the last year and now she is scheduled for major surgery.  What kind of health care legal planning do we need? 

A.  You need carefully drafted health care directives.

You have asked about your wife but the reality is that both of you need planning.  In fact, all people age 18 and over should sign the health care directives outlined below.  Because accident or illness can strike people of all ages, it is vitally important to plan for that possibility.

You need to sign a Health Care Proxy.   In this document you can appoint a health care agent to make decisions for you if you become incapacitated.    Without a valid Proxy, if you become incapacitated, no person is authorized to make decisions for you, not even your spouse or your child.

You have to sign this Proxy while you have capacity – that means you should have this in place today rather than waiting for a crisis.

If someone becomes incapacitated and has no valid Health Care Proxy, a loved one must petition to be appointed Guardian in the Probate Court. The Court process is lengthy, costly (often thousands of dollars!) and burdensome, especially in an emergency.  And when all is said and done, there is no certainty that the judge will appoint the person that you would want to make your health care decisions.

I remember observing a contested Guardianship Court hearing involving a young man who had been in a motor cycle accident and left brain damaged.  His immediate family had split into two camps with the patient’s brother and his mom squared off against the patient’s sister and the dad.  It was tragic watching them fight about who should serve as health care agent.  All of that could have been avoided had the young man signed a Proxy while he was healthy.

Unfortunately, not all Health Care Proxies are created equally and many we see are too simple to fully achieve most peoples’ goals.  Many hospitals hand out form documents to every patient they admit. This form is generic and limited and may not address all your concerns, such as who makes end of life decisions and which other family members you wish for your health care providers to share information with. We recommend that you consult a Qualified Elder Law Attorney to make sure that your Health Care Proxy covers all the important decision making authority you need.

In a Living Will you can detail your end of life decision making wishes.  Most of my clients do not want their moment of death artificially prolonged.  I warn them that with today’s technology, we have machines and computers that can keep essentially dead people alive for months or years.  A Living Will can help avoid this result by giving clear direction to your Health Care Agent.

The infamous Terri Schiavo case in Florida shows what can go wrong when a patient has no Living Will.  Mrs. Schiavo was kept alive by artificial means from 1990 to 2005. Her case ended in a battle between her husband and her parents and finally involved everyone from the Florida Courts and Governor to the United States Congress and the President, all trying to determine her end of life wishes.  If Mrs. Schiavo had signed a Living Will expressing her wishes one way or another, it all could have been avoided.

A ‘Do Not Resuscitate’ Order is a special form signed by your physician telling your health care providers NOT to perform CPR if your heart or lungs stop. CPR can range from basic mouth to mouth to advanced techniques such as breathing tubes and a machine to move air through your lungs. Without a valid DNR signed by your physician, even if you have a Health Care Proxy or a Living Will, in an emergency situation your health care providers are required by law to give you CPR.

While CPR can be a life saving technique for younger, healthier people in some circumstances, studies show that for others, especially seniors and the terminally ill, CPR is extremely unlikely to be successful.  Even a ‘success’ can mean brain damage severe enough to keep a patient on a machine for the rest of their lives. Talk to your physician about a DNR order.

Once you sign your health care directives, please be sure to provide a copy to your physicians so they have them on file.  We provide clients with a plastic wallet card entitled “Emergency Medical Information” that is linked online to their health care directives.  This gives our clients (and their families) the peace of mind of knowing that emergency responders and medical institutions can quickly access their Health Care Proxy and Living Will and contact their health care agent in an emergency.


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About Curley Law Firm LLP

Serving clients throughout Massachusetts, Curley Law Firm LLP draws upon more than four decades of combined Estate Planning and Elder Law experience to ensure that you can achieve your planning goals.

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The value of working with a firm with CELAs on the team is the peace of mind you receive - knowing that you will get the very best advice available to protect yourself, your family and your assets. A CELA is a recognized expert in legal matters dealing with Estate Planning and Elder Law including Trusts, Wills, Asset Protection against Medicaid and nursing home costs, Medicaid (MassHealth) benefits planning and applications, Probate and Trust administration, Guardianship and Conservatorship, and VA benefits planning.

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