Advanced Health Care Planning: Why It Cannot Wait Until Tomorrow

Advanced Health Care_2

By: Managing Director – Family Wealth Strategist, Abbey Flaum, J.D., LL.M.      

Whether you are deciding about what time you will go to bed, whether you have time for a run, which doctor to see, which medicines to take, or which surgeries to undergo, you make daily health care decisions for yourself. These decisions are not always big ones, but they are necessary; so, what happens in the event you can no longer make these decisions – big or small – for yourself? Advanced health care planning answers that question.

Advanced health care planning involves documenting your wishes about how you would like your health care to be managed, and appointing someone to carry out those wishes in the event you are unable to make your decisions.

There are two main types of legal documents used to document your healthcare decisions:

  1. Living Wills mainly address how you would or would not want to be kept alive if you were in an end-stage condition. We don’t ever want to need a living will to instruct a close friend or family member about whether or not to “pull the plug,” as we all hope to die peacefully in our sleep when we are elderly and have lived a good, full life; but, about half of Americans ultimately pass in a hospital or skilled nursing facility, suggesting a need for these documents.
  • Powers of Attorney for health care enable you to appoint your healthcare proxy, or “agent,” to make healthcare decisions for you in the event you cannot make those decisions yourself and to express your healthcare preferences to guide your agent. This document may be completed either instead of or in addition to a living will, as, in most states, the appointed agent has the ultimate decision-making authority for you.

Many states have combined the living will and durable power of attorney for health care into one document: the advance directive for health care. No matter the form of these documents, we all need decisions addressed by these documents to be made; so why is it that only about one-third of Americans have them? Perhaps it is because so many people bury their heads in the sand when it comes to grim scenarios necessitating an advance directive that feel unlikely to occur. Maybe it’s just that we all are so busy with the day-to-day business of our everyday lives that we do not want to take a minute plan for an emergency; but whether you’re a teenager heading off to college, a thirty-something parent, a baby boomer early in your retiree life or a ninety-year-old who visits the doctor more regularly, advance directives are a must.

For so many people who have completed advance planning documents, they have done so because a hospital administrator handed them one in advance of surgery and asked them to fill it out. Arguably, these surgery patients are at the same disadvantage as those who print out advanced health care planning documents online (where many states offer a state form for free!): these documents are frequently written in “legalese,” and even the most intelligent people may inadvertently complete them incorrectly. To impress upon you the importance of completing these documents with the guidance of your estate attorney, some of the most significant aspects of these documents are outlined as follows:

  • Who will be your healthcare proxy/agent?

This selection of the person to oversee your health care in the event you cannot make health care decisions for yourself is arguably the most important decision in your advanced health care planning documents. Your agent is the ultimate decision-maker (and may even make decisions that supersede your expressed health care preferences). Typically, you can name an initial agent and as many successors as you would like. The following are a few considerations for choosing your healthcare agents:

  • Select someone who you fully trust to honor your wishes for your health care.
  • If you are considering naming several people to serve jointly in this role (e.g., your adult children), think long and hard about whether this is a good idea or whether this decision is likely to cause friction and place your health care in a state of limbo in the event of a disagreement among your agents.
  • If you are deciding between a few people, with all other factors being equal, choose the candidate who lives or works closer to you. It is not a dealbreaker if your best candidate lives across the country, but many people prefer to name someone who is local and who may arrive at the hospital without boarding a plane.
  • Consider whether your agent stands to receive a significant inheritance from you if he/she removes you from life support. In many cases, the answer to this question is “yes,” as people commonly name their spouses and children to serve in this role; but, if the answer is yes and that thought has you scared that your agent will want to kill you off because you have a papercut, then please don’t name that person.
  • Do you want to permit an autopsy on your body when you pass?
    • Sometimes, autopsies are required by law. If an autopsy is not required when you pass, do you want to allow your agent to have one done on your body when you pass? You would not be mandating an autopsy; rather, you would simply be granting permission to have one done.
  • Do you want to permit organ donation when you pass?
    • Before you joke, “Who would want my organs,” a small reminder that permitting organ donation is not equivalent to mandating organ donation. If you permit organ donation, then you are simply empowering your agent to decide about donating your organs in the future.
  • How should your body be disposed of when you pass?
    • Burial? Cremation? Body Composting? Donation to Science? We have so many options when it comes to this part of post-mortem planning. I once had a client who typed a ten-page, ten-point font, single-spaced document detailing the company to perform her creation and details for her memorial service (venue, caterer, menu, music playlist, speakers, etc.) This does not have to be you but be sure to let your family know what you would like them to do with your body and how you would like to be remembered.
  • In the event of a situation in which you are terminal and/or permanently vegetative, what are your treatment preferences? The main choices are summarized as follows:
    • ‘Do everything possible to keep me alive’
    • ‘Let me go, but keep me comfortable’ (the “pull-the-plug” option)
    • ‘Let me go, with certain exceptions’ (e.g., nutrition and/or fluids by tube, ventilator, or CPR, as necessary)
  • Who should be your guardian in the event you need one?

People often think of guardians in terms of who should care for their minor children in the event they pass away, but you may need a guardian if a court finds that you are not able to make decisions for your care, safety, support, or welfare. Your advance directives enable you to nominate someone to serve in this role should such a decision come to pass.

  • Other Input

If you have other wishes that are not addressed within a legal form, express those in an “additional information” section or attach an addendum. Perhaps you want your agent to consult with a member of the clergy of your church, synagogue, mosque, or other religious institution. Perhaps you have certain allergies that your agent should be aware of. Maybe you want to emphasize that certain individuals should never be involved in decisions relating to your health care. Whatever it is…say it! This is your document!

A qualified estate planning attorney can boil the language of advanced health care documents down to simple decisions and help you to select the choices which most accurately represent your preferences. It is not only important for your peace of mind to know that your preferences are legally documented, but making your wishes known is a gift you give to your family. It lets them know that their actions on your behalf are in line with your wishes. That it is okay to keep you alive or let you go. That they do not have to live with guilt, wondering if they are acting as you would want.

You might think you are too young, too healthy, or too busy to complete your advanced healthcare planning now, but it is only a matter of years, months, weeks, days, or even minutes until that mind frame makes it too late to complete your advanced planning.

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©2023 Homrich Berg.

Abbey Flaum

Abbey Flaum, J.D., LL.M.

Principal & Family Wealth Strategist

Abbey joined Homrich Berg after 16 years of law practice devoted to estate, gift and charitable planning, probate, trust and estate administration, pre/post-marital planning and business succession planning. As a Principal in the HB Family Office Division, Managing Director - Family Wealth Strategist for Homrich Berg, Abbey serves as our Family Wealth Strategist applying the company's holistic approach to each client's planning, and she provides clients with ongoing, personalized guidance on tax-efficient wealth, business and estate planning strategies.