End of Life Decisions – “When the Rubber Hits the Road”

 

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

Difficult Conversations About End of Life – DNR vs. Health Care Power of Attorney

What many people don’t want to consider – is the prospect of when a person’s DNR/DNI (do not resuscitate/do not intubate) directions may come into conflict with what an agent under a health care power of attorney decides. When a surrogate overrides the patient’s stated wishes (for example, where the children’s interests in “saying goodbye” override a mother’s DNR wishes) Check out this very powerful video of two daughters recounting the difficult decisions they made regarding their mother’s health care.

This video highlights the slippery slope of medical intervention and not knowing when the intervention will end and a daughter’s grief about going against her mother’s wishes.  She poignantly describes her mother’s searching eyes which seemed to ask “why are you doing this to me?”  This is an excellent reminder for all of us, especially those who work with older people who are facing health challenges: have the conversation with your kids or other surrogate decision makers and make your wishes explicit!  It is also useful to note the ongoing need for what the medical document known as a DNR means –it doesn’t mean “no medical care” – it means do not resuscitate.

Between the short periods of time a doctor may spend (if any time is spent at all) explaining to an older person or one who has a medical condition or disease which would make a DNR, and the reluctance that most people have to talk to their loved ones about these difficult situation, these conversations are hard, but worth the effort according to all the people I’ve spoken to about it.  I always encourage my clients, and sometimes also participate in family meetings around this issue of facilitating a specific conversation about identifying a older adult’s wishes, talking about particular scenarios and using specifics where appropriate to illustrate how wishes might be carried out.

Daughter who decided, when asked by the doctor whether she would give permission to put her mother on ventilator decided that she would have done things differently and would have declined intubation.  Daughters could see the pain their mother went through and finally asked mother to respond by blinking to their question “do you want to be taken off the ventilator?”  Very powerful video I strongly recommend.  This is why I think it is important to take time with clients, who are willing and interested in getting real about the difficult end-of-life choice, to discuss with them and often with their adult children the difficult but inevitable prospect of “letting go.”

Along similar lines is an article by Sally Mauk in The Missoulian entitled “Doctor Says Advances Prolong Life, Make Dying Harder,”   The article pinpoints several of the difficult facts that we baby boomers must face in light of the experience of many of our parents’ deaths as well as medical and economic realities that have dramatically changed in recent years.  Mauk’s article is primarily about Dr. Ira Byock, a past president of the American Academy of Hospice and Palliative Medicine.  Byock’s website is www.dyingwell.org and his book Dying Well, published by Riverhead in 1997, is on my office bookshelf, and his newest book “The Best Care Possible: A Physician’s Quest to Transform Care Through the End of Life,”  is a book I’ll be reading soon.  It is best to take the time to start thinking about these issues so that a conversation with loved ones will be more likely and probably less stressful – start with your doctor and don’t forget to consider how the medical and legal documents can work together to support your goals.