Medical Decision Making – Plan Ahead!

by Michelle Shagenov, Esq.

senior couple talking

In November, I discussed basic estate planning tips and estate planning as the key to retaining control of YOUR affairs, for as long as you are able to do so. I also noted that developing an estate plan is an individualized process that depends on your needs, values, and beliefs. I stressed the importance of self-reflection to help you formulate an estate plan best suited to your and your family’s needs.

Self-reflection is an essential component of advance planning for health emergencies. By taking the time to think about your lifestyle and beliefs, you can decide what kind of health care and medical intervention you would like in a health emergency.  Once you are clear about your wishes regarding health care and end-of-life treatment, you can communicate them to your loved ones through a health care directive.  Health care directives also allow you to appoint a family member or a friend who will respect and follow your wishes if you are unable to do so yourself.

Health care directives can help you avoid heated and emotional family conflicts at a hospital bedside like those in the Terri Schiavo case as well as lengthy and costly guardianship proceedings where the court appoints a third-party to make these very personal decisions on your behalf!

Practical tips: Keep your health care directives in a safe and easily accessible place. Keep spare copies. Provide your loved ones with copies. Your family members (or friends) cannot act on your behalf in a medical emergency without your health care directives in their possession! Beware of this common catch-22: You do NOT have easy access to a health care directive if it is in a hospital record because your agent cannot access your medical records without a health care proxy!

The three most commonly used health care directives are:

Do Not Resuscitate Order (DNR):  Advises health care providers that you do not wish to receive cardiopulmonary resuscitation (CPR) if your heart stops beating or you stop breathing. The DNR does not address other health care decisions or end-of-life care. Also, the DNR cannot be used to name a health care agent to act on your behalf.

Living Will:  Communicates your wishes regarding health care decisions, particularly end-of-life treatment. For instance, you may specify whether you wish to receive artificial nutrition and hydration. You may also advise your loved ones regarding organ donation and funeral arrangements.  Your wishes, as indicated in your living will, apply only if you suffer an incurable or irreversible mental or physical condition with no reasonable expectation of recovery, such as a terminal illness, permanently unconscious, or conscious with irreversible brain damage.  As a living will is not legally binding in all states, it is best used in combination with a health care proxy.

Health Care Proxy: Appoints an agent to make decisions about your health care and end-of-life care if you are no longer able to do so.  Only one person may act as an agent at a time. The rationale is that doctors want to communicate with one decision maker, not a committee of conflicting family members.

It is strongly recommended that you discuss your wishes with your agent, especially regarding end-of-life care. Being open and honest about your wishes with your loved ones minimizes conflict during a stressful and difficult time and ensures that your wishes will be respected. In addition, in some states, the agent cannot make decisions about end-of-life care unless those decisions are stated explicitly in the health care proxy form or the health care proxy form states that the agent is aware of the end –of-life care wishes of the patient.

You can name any individual over the age of 18 but should choose only a trustworthy and capable individual to avoid future conflicts among your family members. While health care directives are not easily abused, you should give careful thought and consideration to your choice of agent care for all of your estate planning documents. Other estate planning documents, such as the durable power of attorney, grant an agent much more authority and discretion and can be easily abused without careful thought, consideration, and planning.

Next month, I will discuss how the durable power of attorney, when used appropriately, can provide continuity in financial and estate planning, even in the event of incapacity.

Michelle Shagenov is a NY and NJ licensed attorney with a solo New York City based practice, focused on wills, trusts, estates, and guardianship.  For more information, please contact Michelle Shagenov by email or by calling (347) 618-1454.

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