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What is an Advance Directive and why do I need one?

By Betsy Abramson, J.D., Member of the Dane County Bar Association

“I want to stay in control until the very end."
“I want to have all of my affairs in order.”
“I want to do it "my way.”
“I want to avoid a family fight.”
“I don’t want to waste money on lawyers and courts.”
“I want to avoid a court battle.”
“I want to maintain my dignity.”
“I don’t want to be a burden on my family.”

Do you share any, many, or all of the above goals? If so, then part of your planning for the future needs to include completing a health care advance directive, such as a power of attorney for health care and living will.

Did you know that the great majority of Americans have very strong feelings about what kind of health care, how much and where they want to receive it. But, only a relatively small percentage have actually put pen to paper (or finger to keyboard) and planned ahead. They (mistakenly) think that “it won’t happen to me,” “I have plenty of time to take care of this,” or “my family will just make the decisions for me “they know what I want and don’t want.”

Really? Experience and research show otherwise. Every day people suffer strokes, debilitating accidents, get diagnosed with Alzheimer’s disease or other dementia or for other reasons suddenly or gradually lose the ability to make their own health care decisions. That’s reality. But the good news is that by talking to loved ones and completing very simple forms, available free in every state from most health care providers or aging offices, you can stay in control.

Planning Ahead Helps Ensure That Your Preferences About Health Care Choices and The Health Care Decision-Maker are Known and Honored.
Nobody knows what health care you’d want, where you’d want to get it and what you don’t want unless you tell them.

Would you want life-sustaining equipment such as ventilators or feeding tubes? Only in certain circumstances, such as when there is a chance of recovery? Or always, no matter what your prognosis? Would you want to try experimental drugs or be part of a research project? If it was dangerous for you to live alone because of dementia, would you want caregivers brought in to your own home? Would you want to remove to a retirement facility? Would you be willing to be moved to a nursing home? Only a certain type of facility, such as a certain religious affiliation or in a certain geographic location? Would you want your funds spent on home care or a facility? Would you want to receive hospice services if you had a terminal condition? How important is it for you to be kept pain-free? Would you want to try to preserve an inheritance for friends, family or a special charity?

Who do you want speaking for you if you can’t? Your spouse? Your long-term companion? One of your adult children or grandchildren? Which one? Do you want your spokesperson to consult with other relatives or certain health care providers before making a decision?

How will anyone know what you want and who you want speaking for you if you don’t let them know and put it in writing?

Don’t rely on the law to have your family just "handle everything."

Many state laws contain a "family consent" provision. This sets out a listing of family members who are automatically appointed to make decisions for you if you become unable to make those decisions for yourself. But, this kind of law doesn’t exist in all states. Moreover, even where it does, the order of family members isn’t necessarily the order every person would want. For example, some people are closer to a grandchild than a certain child. Or they might have a particularly close attachment to a great-niece or nephew, who is lower down on the list. Still others may have a very close relationship with a special friend (romantic or otherwise); some states put these “close friends” at the bottom of their list; some don’t include friends at all. And what if you have more than one relative at a particular listing (for example, more than one adult child)? Most importantly though, family members don’t automatically know what health care decisions you want. So, while having a “family consent” law in your state may avoid court and attorney costs, it doesn’t ensure that your wishes will be honored.

In fact, research shows that family members are often no good at all at making decisions that you would want. Your family members probably know certain things about you really well and would be very good at making those decisions for you — your favorite types of restaurant, your favorite kind of music, the color sweater you might like, what kind of car you like, where you’d like to travel, and other decisions. But your very personal health care decisions, including end-of-life? Probably not — and you know why: because you haven’t really talked about it with them. They don’t ask and you don’t tell — that’s not a good plan if you want to stay in control and have your choices honored.

Plan ahead to avoid a burden on your family — and family fights.
Everyone has a story they have heard about from their friends or read in the newspaper about someone “being kept alive like a vegetable” while family members wring their hands about what to do. “What would mom want?” “Are we doing the right thing by stopping the feeding tubes?” “Would she want her money spent on this kind of care?” “Should we move her to this kind of a facility?”

Planning ahead is really a gift to your family. Tell them what health care you would and would not want in various situations and who you want as spokesperson. don’t worry about hurting feelings or leaving someone out. This is your life and your health care. Instead, plan ahead so that your family isn’t left burdened by guilt and overwhelming responsibility to guess among themselves — or worse yet fight among themselves — about what you want.

Plan ahead to avoid costly, time-consuming and often unhelpful court proceedings.
In most states, if there’s no family consent law, you haven’t completed an advance directive such as a power of attorney for health care, or there is a disagreement amongst family members, your situation may end up in court (and perhaps the newspapers). Generally called either a “guardianship” or “conservatorship,” this court process costs money, time and emotional anguish. Family members or health care providers have to pay lawyers to complete paperwork, have court-appointed attorneys and appear before judges. This all takes time — and money. At best, there will be no disagreement and some family member, friend, volunteer or a social service agency will be appointed guardian. At worst, there will be a big fight (more time, more money) before a guardian is appointed. Plus, in some states the scope of a guardian’s authority is very limited; guardians may not have the authority to make certain decisions such as withdrawing life support or making gifts of some money or property. In comparison, agents under health care and financial powers of attorney have much more flexibility in the decisions they may make for you and must follow your wishes, not what they or the court thinks is best for you. They do this quickly and privately, without court involvement

Completing a document is easy and cheap.
People give a lot of reasons to not complete an advance directive. They’re afraid to face their own mortality. It’s unpleasant to “think about these things.” They are superstitious that talking about it will “make it happen to me.” They feel that they can’t talk about these matters with their family members. They feel they just can’t “pick between the kids.” Of course none of these reasons are really very good reasons to not plan ahead.

But the worst reasons, the flat-out wrong reasons, are that planning ahead takes too much time or money. No and No. Planning ahead is very easy. All states have simple forms that you can fill out yourself or seek the advice of an advocate, health care provider or attorney. (See below.) And it’s free. Every state’s forms are available free of charge and every health care provider certified under Medicare or Medicaid is required by federal law to help you complete a document or direct you to someone who can help

So, don’t delay. Responsible adults, age 18 and over, should plan ahead for health care and financial decision-making if they are ever no longer capable of making those decisions on their own. It’s cheap, easy and spares your family the burden or possible disagreements about making those decisions for you. Plus, it best ensures that your choices are honored. It’s your life, your body, your health care, your future. You decide.

For More Information:

Betsy Abramson, J.D. is a member of the Dane County Bar Association, State Bar Association and the National Academy of Elder Law Attorneys (NAELA). Her work has been published in the Wisconsin Lawyer, Marquette Law Review and the NAELA Quarterly.

Do I need an
advance directive?

Pauline Coggs discusses her advance directive.

Watch RealVideo clip (3:34)
featuring Pauline Coggs

Watch RealVideo clip (2:49)
featuring Amy Blumenthal and Arienne Balser

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»Essay by Betsy Abramson

Interview with Julie Kaczmarek


Additional resources

The American Bar Association answers questions regarding Advance Directives

More questions answered about completing your Advance Directive

What is a 'Do Not Resuscitate Order'?

Download your state's Advance Directive

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