Yesterday morning, before my usual third Thursday meetings with other probate lawyers at the Colorado Bar Association, I attended a very informative discussion put on by Norv Brasch at Bryan Cave HRO entitled “Estate Your Intentions: A Special Forum on End of Life Issues.” It was an at-capacity crowd of hospice workers, health professionals, chaplains, other interested people and yes – a few lawyers. . . Without going into much detail about the litigation that set the stage for the initial case study discussion – let’s just say it’s themed along the same lines as Trygve Bauge’s frozen grandfather, the subject of Nederland’s “Frozen Dead Guy Days” festival and there was no shortage of morbid humor (mostly in the form of puns).
The broader and challenging issues are about the constellation of decision making and the alignment of actions by a diverse group of people to make end of life wishes “stick.” When I talk to people about end of life issues, it is typically in the context of an estate plan, but it may also be in a more particular context of crisis planning. Most people have heard of a “living will,” its technical term is “advance directive,” but it seems fewer people are familiar with the MDPOA – the medical durable (or health care) power of attorney. The two documents are very different. The advance directive has had much more press, having been the subject of several U.S. Supreme Court cases, the latest being the case of Terri Schiavo.
I have previously blogged about the documents important for the terminally ill and everyone else. The most important distinction to remember is that the MDPOA names a PERSON to make decisions for you if you are unable, while an advance directive is a document that comes into play in very limited circumstances and is a STATEMENT of wishes. This is not to minimize the importance of having an advance directive, but rather to highlight the need for all of us who are able to
(1) name a health care agent of your choosing and
(2) have a conversation with that person about what you want them to do.
No one wants to accept a job, particularly one that may involve life-or-death decision making – without receiving some instructions first! What does the failure to plan or name a health care agent result in? We don’t know until it happens, but it is typically decision by a hastily convened committee, often of people with diverse and conflicting interests. It is not a happy time for anyone involved, and the failure to have the conversation and to make any plans only serve to complicate matters.
The panelists spoke about the challenges of having the difficult conversations about health care and the end of life. Of course, none of us knows what the end of our life looks like, the where or when or how. This difficult conversation that so many of us are reluctant to have often gets played out within the hospital setting when a frail elderly loved one breaks a hip or contracts pneumonia. These seemingly run of the mill injuries and illnesses for the younger folks are still the primary causes of death in the elderly, so this serves to bring front and center mortality for the majority of us: advanced age. All of our medical technology cannot save us from the inevitable – but what does the inevitable look like? When do we accept that someone is dying? Just because we don’t have hard and fast answers to those questions doesn’t mean we shouldn’t talk about them. One of the panelists commented that “the last place you should be talking about end of life decisions is in your lawyer’s office. . . ” I heartily disagree. I think having the conversation in your lawyer’s office is a perfect place and time to start the conversation – it is often while it is a more “theoretical” proposition and therefore less threatening. It is different when your lawyer talks to you about disability and death as distinguished from when you visit your doctor. I have spoken to people about hospice and made the suggestion to consider it more carefully with persons in fragile health. Is this something most estate and elder lawyers do? I doubt it! Is it part of what is the process of planning (with legal documents) for the inevitable? Absolutely!
The upshot from this great program is that people – everyone – need to talk to each other, to have the difficult conversations! It is not just about getting the legal documents, medical documents and statements of your desires (which most people do not have). I can say that from my perspective as an attorney and as a mediator, it is about getting people involved with your decision making and making your wishes known so that there will be much less opportunity for guilt, conflict and recrimination among loved ones and family members.
Thanksgiving is an excellent time to remember to consider and say Dr. Byock’s four things
please forgive me
I forgive you
thank you
I love you
and maybe even have the conversation about final wishes. It’s a holiday about gratitude after all, what more is there to be grateful for than our life?
©Barbara Cashman www.DenverElderLaw.org
