Your Living Will When It's Not Enough to Check the Boxes

The standard Massachusetts form of the Health Care Proxy can be completed quickly in a lawyer's office by checking a few boxes. But if you believe that form protects your interests, consider this:

In the infamous Terri Schiavo case, Ms. Schiavo did have a signed and valid health care proxy. That was not enough to protect her from the involvement of the court, the media and the President in her private medical affairs. What did she do wrong? She didn't have a Living Will in place to make her wishes known to her Health Care Proxy. That opened the door to torturous arguments about what she would have wished for.

Even more recently, famed heart surgeon, Michael E. DeBakey, who credited his Lebanese-immigrant mother's teaching him to sew with his later success as a surgeon, pioneered a technique designed to prevent fatal aortic aneurysms (ballooning of the aorta). (The technique was named an "aortic dissection repair procedure."). At age 97, DeBakey had a life-threatening problem that his own surgical procedure could fix, but he had signed a "standard form" directing that he not be resuscitated if his heart stopped and a note on the chart saying "No Surgery." A reading of his documents might have revealed that the form was prefaced by the phrase: "If I am terminally ill with no reasonable prospect of recovery" then I want no surgery. Yet in the face of an emergency, as my doctor friends point out, medical staff may not read beyond the part about "No Surgery."

At the time, Dr. DeBakey was not terminally ill with no reasonable prospect of recovery. But his documents stood in his doctors' way, not to mention the conventional wisdom that you don't operate on a 97-year-old man-even though he was still working full time. Fortunately, after a go-round with the hospital's Ethics Committee, the operation was performed and it was successful. In several months, Dr. DeBakey was back at work. (He lived on until this past July, just two months short of his 100th birthday.)

A Better Solution: How can you protect yourself better than Terri Schiavo and Dr. DeBakey? Instead of checking boxes on a standard health care proxy, include a current Living Will with clear guidelines that match your wishes.

After the DeBakey case we are providing all members of our lifetime protection program the option of creating a Living Will with clear guidelines to direct your health care agent of your specific wishes. You make the choice of whether you allow your agent great discretion or give them specific guidelines to follow. You can state that you don't want futile medical treatment, but you'll let your health-care agent decide what's appropriate when the situation arises and after consultation with the medical staff. Such things as a respirator, penicillin, gastro-tube, and a pacemaker can be either futile treatment or entirely appropriate. With a trusted health-care agent and clear guidelines, you can ensure the right decision will be made on your behalf. As with Dr. DeBakey, it all depends on the situation.

Having Documents in Place is Not Enough! Are they up to date and accessible?

In our practice we find that many people have disability documents including health care proxies, powers of attorney and HIPPA releases that are years or even decades old. The documents themselves don't have an expiration date written on them, so many people incorrectly assume that they are all set-until there is a medical or financial emergency and they try to use their documents!

We have had calls from clients at banks or medical institutions telling us that their documents were being refused. These institutions, including major banks such as Bank of America or Citizens Bank, have administrative rules requiring them to decline any powers of attorney older than a year (six months at Bank of America). When faced with three, five or ten year old documents, these banks turned powers of attorney away, just as a disability required their use.

It is critical to have current documents, but even having up to date documents isn't enough. Are your health care documents accessible? Not many people carry their critical documents with them, whether they are going on vacation or driving down the road to the grocery store. Do you know how your documents will be accessed if you get into an accident or some other emergency? The health care proxy painstakingly drafted by your Attorney can't help you if it is at home on your bookshelf!

Our process

At Dennis Sullivan and Associates we help our clients meet their goals and objectives through a process that combines education and counseling. The process begins with an educational Trust and Life Planning Workshops, held twice a month in Wellesley (for upcoming dates and to register, please call (800) 964-4295 or see our website at http://www.DSullivan.com). The workshops are an excellent way to review existing planning, if any, and learn about the options available with estate and asset protection planning. We welcome all members of the community to attend. For those that cannot attend, please contact our office for a unique self guided 19 Point Trust, Estate and Life Planning legal guide

After the workshop or a review of the 19-Point Trust, Estate and Life Planning legal guide, we provide a personalized review of asset protection and estate planning concerns and opportunities of each family. At the meeting we help people develop a customized plan together that will meet a family's goals and objectives, including protecting assets, avoiding probate court involvement at disability and death and minimizing the impact of state and federal taxes

Once the plan is established we help review it annually to make sure it continues to meet a families objectives even as the law, finances and personal circumstances change. We call this annual review process the Lifetime Protection Program. As part of the program we review your planning for changes in law and circumstances, make sure your assets are coordinated with your trust. We also help create planning that will be effective if you are disabled or need nursing home care

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