Contemplating our own death is one of the hardest challenges we will ever have to face. Yet, if we want our dying to be meaningful and merciful, it is imperative that we think about it while we still can. Most of us want to die at home, in a familiar and peaceful setting surrounded by loved ones. We would much rather not spend our last moments in an emergency room or ICU, with strangers futilely pounding on our chests and our families relegated to the waiting room.
With those two alternatives in mind, we need to do all we can to keep control, as much as possible, of decisions that need to be made long before our final moments. We need to think carefully, well in advance, about what makes life worth living, and where pain and limitation have so eroded that quality of life that we would prefer not to go there.
These are notoriously difficult questions, but it is vital to address them anyway. For example, Terri Schiavo spent nearly half her young life unconscious in a condition known as a “persistent vegetative state,” being kept alive by a feeding tube. Her husband and friends claimed that before her severe brain injury, she said that she would not want her life sustained by machines. Unfortunately, she never put that wish in writing. On the other side, her family and others insisted that she be kept alive despite her dire condition. After protracted litigation, Ms. Schiavo's husband prevailed, the feeding tube was withdrawn, and, fifteen years after she was injured and never having regained consciousness, she was finally allowed to die.
Since her passing, the law has evolved nationwide to encourage us all to document final wishes, to avoid the anguish and uncertainty of Ms. Schiavo's situation. There are a number of documents available in Michigan for that purpose. The umbrella term for these is “advance health-care directives.”
It's our job as lawyers to help you sort through the various directives needed to express your wishes. Here is a step-by-step guide to begin the conversation about final wishes, and to understand which document does what when.
If you are over the age of 18, decide on a patient advocate to speak for you when you cannot.
Decide who, among those who know you well, is best suited to take on this responsibility. That person must possess good communication skills, remain calm in difficult situations, and be able to deal flexibly with complexity that might arise in reconciling your wishes with available medical options.
Sit down with that person and discuss your wishes in various scenarios.
It can be a good idea to have one or two alternate patient advocates in the event that your first choice is unable or unavailable to act.
Patient Advocate Designation
Once you have had that conversation, visit your lawyer to designate your patient advocate formally in a Designation of Patient Advocate. This legal instrument conveys legal authority on your patient advocate to express your health-care decisions when you are unable to.
In Michigan, the patient advocate can only make medical decisions for you if your doctor has determined that you are unable to participate in or make medical decisions, such as if one is unconscious or has advanced dementia.
Your patient advocate will also need access to your otherwise-private medical information. This is best done by a standardized document that complies with the federal Health Insurance Portability and Accountability Act (HIPAA). Without this authorization, your patient advocate may be unable to obtain the medical information necessary to exercise the authority you want him or her to have.
Now armed with your patient advocate and the Designation of Patient Advocate and HIPAA documents, you will know that if you were to meet with an accident or lose consciousness, you have chosen and empowered an advocate to speak for you. You should review and update these documents every five years or so.
Living Will (also known as Physician's Directive)
This document is for use when you are not enjoying quality of life. Either death is imminent; you are in a persistent vegetative state; or you are permanently unconscious. If you have no awareness of others; can't remember or understand or express yourself; or are unable to move, bathe, or dress yourself, it's advisable to have expressed, in advance, the kind of treatment you want to receive or not receive.
A living will states your choice as to whether you do, or do not, want artificial measures that will merely prolong your life but not improve it. Those measures, among others, may include CPR if your heart stops, or breathing or feeding tubes, or repeated courses of antibiotics or chemotherapy.
The living will should stipulate that you desire comfort care, to keep you clean and as pain-free as possible.
Make Your Advance Health-care Directives Available
When it comes time to use your documents, they must be readily available. After all, people do not tend to stop and get them out of the safe deposit box if they are on the way to the hospital while having a heart attack. Give a copy of them to your patient advocate, make sure they are included in your medical records, and consider a service where the Advance Health Care Directives can be downloaded over the internet at any time.
If your documents can't be found, or if your agent or family don't understand them or ignore them, you will have spent your time, effort, and money in vain. However, if all goes according to your wishes, you will have done your best to create a good death, one that is as meaningful and less stressful as possible for all concerned. If I can assist in helping you with any of the estate planning above, I would be pleased to do so.
Andrew Byers is an elder law and estate planning attorney in Troy, Michigan who assists his clients with Advance Health-care Directives.