Planning for Medical Decisions

Understanding medical directives will help your clients make decisions about incapacity.

By John J. Scroggin, J.D., LL.M., AEP

America is aging rapidly. The single fastest growing demographic group in the United States is that of people 85 and older. As the Baby Boomers and their parents reach their elder years, issues of medical decision making are becoming imperative.

But the elderly are not the only people who need to plan for incapacity. Remember, Nancy Cruzan, Karen Ann Quinlan and Terri Schiavo (the women in the center of the three major cases on life support withdrawal) were all women in their late 20s or early 30s when they became incapacitated and their families struggled to determine their wishes about being kept on life support.

The debate over the withdrawal of life support has been a long and costly legal and political conflict. It began with medical science’s advancements in keeping people alive. By the early 1960s, medicine had advanced to the stage that permanently unconscious clients could be kept alive even with minimal brain activity. As a result, there were debates about a patient’s “right to die.” In 1976, California became the first state to approve living wills. By 1992, all 50 states had adopted similar legislation.

In 1976, the New Jersey Supreme Court rendered In Re Quinlan. It decided that a heart-lung machine could be withdrawn from Karen Ann Quinlan but required that intravenous fluids and nourishment must continue, even though Quinlan had no apparent brain activity. Although doctors had expected her to die after being taken off the heart-lung machine, she lived almost 10 years on intravenous fluids and nourishment.

Fourteen years later, in Cruzan v. Director, Missouri Dept. of Health, the U.S. Supreme Court ruled that to be taken off life support (including intravenous nourishment and fluids), the incapacitated patient must have declared such a desire before becoming incapacitated. The Missouri courts found that Nancy Cruzan had made sufficient verbal declaration to allow withdrawal of her nourishment.

The ethics of living wills has also received increased focus. In a talk on March 20, 2004, the late Pope John Paul II indicated that patients in persistent vegetative states should be fed and hydrated. The pope indicated that such treatment is morally obligatory and that the withdrawal of feeding tubes constitutes “euthanasia by omission.”

While the nuances of medical decision making vary from state to state, most states have adopted some form of the Uniform Health Care Decisions Act (the Act), which was adopted by the National Conference of Commissioners on Uniform State Laws in 1993.

Failure to establish a legal structure by which the decisions can be made breeds both additional costs and the potential for family turmoil. For example, a 1992 study in The Archives of Internal Medicine reported that having a living will or medical power of attorney saved almost $65,000 per patient in the final stay in the hospital.

Incapacity planning involves more than planning for medical decision making upon incapacity. Clients who are concerned about their incapacity should also consider drafting durable general powers of attorney and living wills. There are a number of things to know about making these medical directives.

Living wills
A living will is a declaration not to provide life-sustaining treatment if there is no significant hope of recovery. Although the Nancy Cruzan decision permits verbal declarations, clients are well advised to sign written documents that are consistent with the statutes of the state where they live. Failure to sign a proper living will may result in family conflicts over the client’s declared intentions (e.g., the Schiavo case in Florida) and necessitate court cases to discern what the client’s intentions were.

The increase in conflicts over the intentions of an incapacitated family member is beginning to raise an interesting issue. Clients who, for religious or other reasons, do not want life support to be withdrawn, may want to consider signing a document that clearly states their intentions.

Health-care power of attorney
A durable health-care power of attorney is designed to give someone the power to make medical decisions upon incapacity, including the withdrawal of life support. The document may also name successor power holders and guardians.

The Act provides that the person holding a health-care power of attorney has priority decision making over any guardian who may have been appointed. Although the Act does not deal with the impact of marriage upon the appointment of a power holder, some states provide that unless the power of attorney expressly provides otherwise, if marriage occurs after signing the document, the marriage is an automatic revocation of the designation of any person to serve as power holder other than the principal’s spouse.

The Act also provides that if a marriage is dissolved or annulled or a legal separation occurs, the dissolution revokes the principal’s former spouse as the principal’s agent to make health-care decisions. Thus, it is important to name one or more successors to a spouse (i.e., in case a divorce occurs).

The Act does not recognize multiple power holders. It provides that the power is delegated to an agent who is an individual. If dual agents are appointed, is the intent that they must act unanimously, or that each has independent authority to act? To avoid such conflicts, it is generally advisable to appoint one power holder at a time.

Medical directives
Many clients are concerned about how the holder of a power of attorney will exercise his discretionary authority. If the client is concerned about specific decisions the agent may make, review using a medical directive. Copies of the directive are available at www.medicaldirective.org. A similar form can be obtained at www.help4srs.com.

John J. Scroggin, J.D., LL.M., AEP is a speaker and author with more than 300 published articles and outlines, and three books. To receive his free blast email on estate- and income-tax planning, contact LuAnn@scrogginlaw.com.