National Healthcare Decisions Day is on April 16th, and it’s an important reminder for every adult to let someone know their most private wishes about medial treatments and possible end-of-life care.
Far too many people assume that their families would make the choices they would want in an emergency. Yet everyday we hear stories of adult children, siblings, or other relatives/friends battling during a health care crisis over “what their loved one would have wanted” in that situation.
The Terry Schiavo case is a great example of this. At the young age of 26, Shiavo suffered sudden cardiac arrest and slipped into a permanent a vegetative state. She never documented her wishes about things like feeding tubes, life support, and long-term quality of life, leaving her spouse and parents to battle for years over these questions in court.
Her husband eventually had her feeding tube removed claiming, “That’s what she would have wanted.” But was it really? Her parents certainly didn’t think so. But we’ll never know because Terry didn’t make her healthcare wishes known to her closest family and friends.
But it’s not enough to just tell someone about your wishes. You need to clearly document your preferences, too. Remember, emotions can run high during a health care crisis, and it might be hard for your loved ones to stop life support when they desperately want you around. Having your wishes spelled out in writing helps make these types of decisions easier for your loved ones, especially in cases when family members don’t agree.
So in honor of National Health Care Decisions Day, I encourage you to start tough conversations with loved ones about your personal medical preferences for medical and/or long-term care. Here are some important questions to consider:
What are your thoughts on feeding tubes, life support, and other artificial life saving devices?
Is there any type of medical care you would NEVER want?
If you were permanently disabled or incapacitated, what things would contribute or take away from your “quality of life?”
Who do you trust to make important medical decisions if you are unable to speak for yourself?
What are your thoughts on nursing home vs. in-home health care? Who would you trust to manage your long-term care? your finances?
These are not the most fun conversations to have, but they will help to ensure that your most personal wishes are honored in a true medical emergency. Talk them over with loved ones and have Attorney Kristina Vickstrom prepare important legal documents like a Health Care Proxy, a Living Will, and a Durable Power of Attorney. Getting documents in writing that spell out your wishes and the care you want if something happens to you is one of the best gifts you can give your family. It can avoid misunderstandings, family disagreements, and even court battles.
Get something in writing before an unforeseen emergency strikes. Do it early (age 18 and up) and check it often (with a major life event, or at least every 5 to 10 years) to make sure you have the most protection under the current Massachusetts laws and to make any changes to your wishes and/or decision makers.
Some people think that Elder Law and Estate Planning attorneys are only useful further down the road. They think, “I’m healthy. I don’t need to worry about those things now.” Even while you are healthy, there is one document that everyone over the age of 18 should have in place: a Health Care Proxy (HCP). A health care proxy is necessary to ensure that someone, a health care agent, will be available to make medical decisions for you if you are unable to make them on your own because you are incapacitated. Currently, in Worcester County, another form is also worth considering: the Medical Orders for Life-Sustaining Treatment (MOLST) form. This medical order works with the HCP to inform your health care agent and your doctors what you actually want to happen in various circumstances.
In April 2008, the Massachusetts Health Care Quality and Cost Council (MHCQCC) issued its annual report recommending that Massachusetts establish a pilot program to improve communication between patients and clinicians, and other interested parties, regarding end of life treatments. The MHCQCC found that many patients nearing the end of life were unaware of the treatment options available to them, or, if patients had been aware of such treatment options and had discussed them with their doctors previously, nothing was in place to ensure that their preferences were honored. Therefore, the Massachusetts legislature enacted legislation in August 2008 establishing a demonstrative program for the MOLST process in one community in Massachusetts: Worcester. (Yay, Worcester!)
The MOLST form is fairly simple and easy to read; the most difficult part is actually making the decisions and putting them down on paper. The form is only two pages long, and only two sections must be completed in order for the form to be honored. These two sections are Section D (patient information – specifically who is signing the document on behalf of the patient) and Section E (physician information). In Section D, it is possible for the patient, the patient’s health care proxy, or the patient’s guardian to sign on his or her behalf. If a guardian is signing for the patient, the guardian must ensure that s/he has the legal authority under the guardian appointment to do so. This may require consultation with the patient or guardian’s Elder Law attorney.
If any other section of the form is not filled out, the health care agent is not limited in his or her decisions for life-sustaining treatment for the patient. Sections A, B, C, and F ask the difficult questions regarding resuscitation, intubation and ventilation, hospitalization, respiratory support, dialysis support, and artificial nutrition and hydration. It is critical that you speak with a physician before making these decisions so that you fully understand the meanings of the terms used and the potential consequences. Once these sections are filled out, they must be honored by all health care professions in Massachusetts, where clinically appropriate. The MOLST form is different from a Living Will or another document expressing your “final wishes” because it carries more authority and is more likely to be honored. A Living Will or final wishes document is only used by health care professionals to keep your wishes in mind when making decisions about treatment. While the MOLST form is not currently legally binding, health care professionals are strongly encouraged by the state to honor it.
Finally, Section G simply asks for the contact information of the health care agent. There is also room on the form for other treatment preferences, in which you can more clearly articulate your wishes. There is an expectation that the form will be reviewed throughout the patient’s life so that if his or her preferences change, those preferences will still be honored.
I see it more and more and it really saddens me: families unable to “get along” when it comes to decision making for elder loved ones. It can be as simple as whether Mom and/or Dad need to meet with an Elder Law Attorney, to concerns over finances and inheritance issues, to whether siblings agree on who should serve as primary caregiver, and/or to whether assisted living/nursing home care is necessary.
Often as family members age, family dynamics can become more complicated. Conflicts that have simmered below the surface can boil up and make conversation impossible. Sometimes the elders are involved in the discussions, but unfortuntately sometime they are too far gone to meaninfully participate.
Either way, even the most harmonized family can sometimes hit a bad note or two and require some assistance.
(Dun, dun, dun, dun!) Enter the Elder Mediator. Mediation provides an opportunity for the Elder and all concerned members of the family to participate in creating a thoughtful plan for future. In most cases Elder Law Attorneys can act as Elder Mediators with certain issues. However the scope of the disagreements can often rest in other issues that are not related to the elder law topic. An Elder Mediator, working closely with your Elder Law Attorney, is trained to assist families in identifying the real issues, separating them from the crucial issues of planning for elder care, and developing the best plan of care.
National Public Radio has recognized the usefulness of elder mediation for families dealing with aging issues.
As baby boomers age and options for their care increase, we will all face many difficult choices concerning how we handle transitions during our elders’ declining years. Families will have to be able to evaluate resources, options and develop flexible strategies to support their elders. Even when not legally competent to make decisions, it is important to include an elder’s wishes and expressed preferences when putting a plan into place. Elder mediation is a rational first step for families to help them address their changing needs while enhancing problem solving/communications skills and avoiding messy litigation.
Who do you know that is getting ready to go off to college this fall? Perhaps it’s your own child, a niece/nephew, grandchild, or son/daughter of a friend. Families will soon be shopping for bedding, mini-fridges, Easy Mac, and textbooks. With the myriad of things to be done before the fall, I’ll bet you very few family “to-do” lists include a check off box for Get Junior a Health Care Proxy. This often overlooked necessity is something that should, at the very least, be considered.
When your child turns 18 they are a bona-fide adult and Mom and Dad cannot step in to make medical decisions for their now “adult” children. In Massachusetts, the only document legally recognized to name a substitute decision maker is a Health Care Proxy. However, the overwhelming majority of college students do not have a Health Care Proxy in place.
A Health Care Proxy names someone to make health care decisions for you in the event you are unable to do yourself. So, for example, let’s say that Sally comes down with a bad case of meningitis her freshman year. She deteriorates very quickly and ends up in a near-unconscious state, unable to make or communicate medical decisions. If she had a Health Care Proxy in place naming Mom, Dad, or older sister as her health care agent, they would be able to communicate with Sally’s treating physicians more completely and have legal authority over her health-related decisions.
What if Johnny has a tragic accident on the football field leaving him paralyzed from the neck down? On top of that the doctors say the outlook is grim if Johnny will ever regain mental functioning and is in a permanent, vegetative state on total life support. Without a Health Care Proxy in place, Johnny’s family won’t be allowed to decide the level of support he will receive. Johnny’s family may even be forced to go to the county Probate Court to get a legal guardianship and ask a judge to make any changes to Johnny’s treatment. Most students would rather have a trusted family member make this decision than a total stranger.
It may seem unnecessary to prepare health care documents for someone so young and healthy, unlikely to come down with serious illnesses. However, when accidents happen to young adults, their legal needs are not often protected and important decision can be left up to disinterested parties, limiting close family involvement.
This may be an unsavory topic to discuss with an 18 year old, but very important, especially if your child still wants Mom and Dad helping them handle their affairs until they get older or are married.
Vickstrom Law • Kristina R. Vickstrom, Esq. • 172 Shrewsbury Street • Worcester, MA 01604 508.757.3800 • View Disclaimer.
Vickstrom Law specializes in Estate Planning, Elder Law, Medicaid (MassHealth) Planning & Applications and Probate and Estate Administration and services Central Massachusetts including Worcester County, and Metrowest Middlesex County Boston area including Worcester, Marlborough, Hudson, Leominster, Fitchburg, Shrewsbury, Westborough, Northborough, Southborough, Stow, Bolton, West Boylston, Holden, Sterling, Spencer, Grafton, Brookfield, West Brookfield, and Sturbridge.
National Healthcare Decisions Day is on April 16th, and it’s an important reminder for every adult to let someone know their most private wishes about medial treatments and possible end-of-life care.
Durable Power of Attorney, Family, Guardianship, Health Care Proxy, Living Will, Uncategorized | Kristina | 
April 13, 2012 9:37 am | 
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