It’s a novel concept for lawyers to say less, rather than more, but the time has come to rethink our surrogate health care decisionmaking. We lawyers pride ourselves on being completionists—we draft documents to cover every contingency, no matter how remote or unforeseen, because after years of practice, we’ve seen so many oddball situations. But, by and large, the majority of our clients are best served when things are simple—when they can understand what the documents say and easily present them for use. The time has come to shorten and simplify our advance health care directives.
Importance of Directives
When discussing health care decisionmaking, certain cases inevitably come to mind. The case of Nancy Cruzan, a 27-year-old woman in a single car rollover accident in Missouri, who was thought to be dead at the scene. Her case went to the U.S. Supreme Court. Or, Terri Schiavo, a young woman who went into cardiac arrest in her late 20s, whose case also went to the Supreme Court, to Congress and even received the President’s direct attention. But, was the argument over interpreting their advance health care directives? No. They were both in court because neither one of them had an advance health care directive at all.
Simplifying our documents might mean that more people will read and sign them. A single-page document appointing an agent would have been of immense help to both Nancy and Terri. Now, it would have been helpful if the documents stated their wishes if they were ever in a persistent vegetative state, but, the real issue in those cases was who was entitled to make those decisions. Joe Cruzan was astonished that he couldn’t make decisions for his own daughter without interference from the state of Missouri. In Florida, the Schiavo family was divided between Terri Schiavo’s husband and her parents over her end-of-life decisions.
Why are advance health care directives important? We Americans are proud of an individual’s right to make her own decisions. We pride ourselves on respecting each other’s beliefs, cultures and traditions, and it’s easier to do that when a patient has written down her wishes or put in place an agent who’s familiar with the customs, practices and traditions in question. As an integral part of that mindset, we want to continue to respect an individual’s own decisions, even when that individual can no longer express them. For this reason, we look to advance health care directives, spouses, long-time partners, children, other relatives and friends to try and discern a patient’s wishes when important medical decisions need to be made. So, anything advisors can do to encourage the signing of advance health care directives and spread their use is imperative.
The Crucial Decisions
So, what are the really crucial decisions? We, as lawyers, often talk about “a persistent vegetative state.” Do our clients know what that is? How many of us truly know what that means? How is a persistent vegetative state different from a coma? I’m not sure, and because this isn’t an article on medical conditions, that’s okay. Rather, we want to focus on what’s crucial for an agent to know. I propose that what an agent must know can be limited to:
1. Pain medication. Most people want to avoid pain. Some people have very high tolerances for pain. Most don’t.
2. Cremation. Without clear instructions on cremation, if anyone objects, you’ll be buried in certain states, for instance, California. Some states require a separate document directing cremation, others allow the agent to decide. Check on what your state requires if the client wants to be cremated.
3. Autopsy. If you die under mysterious circumstances, the coroner will probably do an autopsy whether you want one or not. But, if the death isn’t mysterious, should your agent be able to authorize an autopsy?
4. Organ donation.
5. Spending large amounts of money on health care when it’s not clear that the outcome will be better.
With ever-increasing deductibles and copays for Medicare and, especially, for private insurance, cost is fast becoming a factor in health care. Our clients, particularly the baby boomers, will need to ask the question: Do you want your money spent on your medical care? Most of us expect that the baby boomers will respond with a resounding “YES”! If that’s the client’s response, include that in the directive.
In many states, there’s a statutory priority for medical decisionmaking if the patient hasn’t signed an advance health care directive. Generally, the first priority is the spouse or registered domestic partner, then the adult children and, if none, siblings. As the population increases and the health care reimbursements and available health care dollars continue to shrink, less time will be spent with each patient. It’s vitally important that an incapacitated patient have an advocate who can discuss care issues and clearly articulate the patient’s wishes when she’s unable to do so herself.
Sample One-Page Directive
“Short & Sweet,” below, is a sample one-page advance health care directive that covers all the aforementioned points. I welcome your comments. Let’s work toward a one-page form that’s truly sufficient for our clients.