April is Health Care Decisions month, the month when you are supposed to sign health care proxies and talk to your family about your “end of life wishes.” I know many people will sign health care proxies, but I wonder how many will take that next step to communicate their wishes to their families, or to even consider what their wishes are.

A health care proxy is invoked when your doctors have determined that you are unable to make or communicate health care decisions for yourself, and someone needs to speak on your behalf.  Maybe you’ve been in a car accident and are unconscious, or have had a stroke and cannot move or speak, or have advanced dementia and cannot understand the situation enough to know what decision to make.

Stop for a moment and imagine this situation.

Then imagine that something needs to be done -  a blood transfusion after an accident, a feeding tube inserted after a stroke, CPR because of a heart attack suffered when you have advanced dementia.

Do you know what you would want done? Does your family? Do your doctors?

The decisions aren’t the same for everyone and there is no “right answer.” It depends on your age, health conditions, religious beliefs, family experiences, and more.  What you would have wanted at one time, may change as your health changes.

When your doctor turns to your health care proxy and says “what should we do?” you want them to be able to know, with confidence, what you would want.  Because they are not making their own decision, they are communicating your decision. And they can’t do this if you haven’t told them what you wanted. It’s a hard enough position to be in already, don’t make it harder by putting the burden on them to decide.

Help your health care proxy by thinking about your wishes, by writing those wishes down (this often helps us learn what we are thinking) and then sharing those wishes with your family or whomever you are appointing to serve in this role.

Share them early and often. I do. I gave everyone in my family a copy of the Five Wishes Living Will for Christmas one year. (The perfect stocking stuffer!) I update mine every so often, sometimes prompted by media stories, and revisit it often to see if there is anything I want to add or change. And I make sure the people I’ve appointed to act on my behalf know what I want and where to find the document so that in a moment of crisis, they can be reassured that they are making my decision, not theirs.

It’s not morbid, it’s kind.

I am acutely tempted to answer, “Of course not — my father would not want heroic measures.” But I hesitate because I know it might not be true. In the past, he has wanted everything possible done. This night is different, but I do not know if his answer would be different.

I look at my father. It is hard to tell if he is conscious. No one else is looking at my father. Everyone is watching me closely.

Finally, I say out loud the only thing I know to be true. “In the past, my father has asked that everything possible be done.”

Then I bend over my father and ask him in a clear, strong voice: “Daddy, do you want to be intubated again? Squeeze my hand if you want to be intubated.” I wait, but he does not squeeze. Instead, he surprises us all by nodding his head. He is weak, but the nod is unmistakable.

In the story, the nurses seem annoyed that they chose this invasive procedure.

What the doctor and nurses do not know, what I hesitate to admit even to myself, is that I almost gave them the answer they wanted: the reasonable one. But I would have been terribly wrong.

My father never really recovered. He could never again breathe without a respirator, he never left the hospital bed, and he eventually needed dialysis and a feeding tube. Six months later he died of heart failure.

I suppose my father’s decision was a mistake. But it was his mistake to make, not mine. My role was to support my father, no matter what, and to tell the truth, no matter how hard.

This is why when I talk to my clients about their health care proxy, I stress that it is not just enough to appoint someone to make those health care decisions, you must talk to them about the decisions you want them to make. You have to actually have the conversations about end of life care, intubation, feeding tubes and all those things that make most people uncomfortable. You also have to make sure that you are appointing someone who is capable of communicating your wishes during a medical crisis.

A lot of my clients use the Five Wishes Living Will to help them with these decisions. Other choose a living will designed by their church, still others write their own.  The important thing is that you do it, and then talk about it with those people to whom you are giving the authority to communicate those decisions.  And then trust that they will convey your wishes, not theirs.

This was the question my father asked me when I wanted him to sign a durable power of attorney. (Yes, just as the cobbler’s children have no shoes, the lawyer’s father had no power of attorney.)  He was in the middle of selling his house and buying a new one, and I explained that if he was out hiking and fell and hit his head, I did not want to have to go to court to get a conservatorship over him to be able to complete the sale and purchase of the homes.

So, I explained that he was giving me a lot of power. Everything from signing checks to pay his bills to selling his house.  But he was also giving me a lot of responsibility. The responsibility to talk to him about what he wanted, the responsibility to figure out what was in his best interest if I had to be the one making decisions, and the responsibility to be a good steward of his property.  In other words, he wasn’t giving me the power to do whatever I wanted with his property. And as long as he was able to manage things for himself, I wouldn’t be doing anything. But if he wanted me to talk to the real estate attorney or broker, I could.

This is a concern of some of my clients. They worry that if they sign power of attorney over to their children they will lose control.  But what they are really doing is taking control. Control over who will help them. Control over who will have access to their information. And control over who will not.

My father signed the power of attorney. And now when he hikes I still worry, but not about whether I’ll need to be heading to Court instead of the hospital if he has an accident.

________
Estate Planning, Probate and Medicaid involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as may be appropriate.

Once you have signed your health care proxy and given a copy to your health care agent, your doctor, and perhaps put a copy in your glove compartment, your work is not done.  It is very important to let your health care agent know what your wishes are so that they know what decisions you would like made for you when you are unable to communicate those wishes. 

A person's statement of their wishes regarding health care is often called a Living Will, or life support statement.  While these documents are not legally binding in Massachusetts (only the Health Care Proxy is), I recommend to my clients that they think about signing a Living Will.  There are a few different ways to communicate your health care wishes:

• You can write a simple handwritten or typed note and sign it and keep it with your health care proxy,
• You can complete a workbook such as Five Wishes (the document I give to my clients) or Your Way, 
• You can complete and sign a document handed out by your church or religious organization which lays out the requirements for end of life care, or
• You can even just have a conversation with your health care agent about what you might want in different situations. 

The important thing is that your health care agent knows what your beliefs and wishes are surrounding medical care and end of life care.  And if you know someone has appointed you as their health care agent, then you should talk to them about their wishes.

If you haven't done any planning, you may wish to download one of the living will documents linked above to get you started, and then get in touch with an attorney to make sure that your wishes will be honored. 

If you are signing a new one, the new one will generally have language in it that states it revokes any old powers of attorney.  However, you need to take some extra steps to ensure that the old one is not inadvertently used.  If you have given copies of the old power of attorney to the agents appointed in that document, get the document back from them. If you cannot, send them a letter by certified mail informing them that the document has been revoked and any authority given to them or another person under that document is no longer valid.

If you had given a copy of the document to a bank or other financial institution, send them a letter stating that the old power of attorney is no longer valid, and enclose a copy of the new power of attorney.

If the old power of attorney gave the agent power to deal with your real estate, you may wish to record something with the registry of deeds indicating that the old power of attorney is no longer valid.

I don’t generally recommend that you simply revoke an old power of attorney without signing a new one, but in some cases it may be necessary to do so before you are able to sign a new document.  In that case, follow the steps above to put all parties on notice that the power has been revoked.  Also, check the document to see if there are additional steps you need to take to notify the agents that they no longer have authority.  As soon as you sign a new power of attorney, be sure to let the new agents and your banks, etc. know.

As always, your power of attorney should be drafted by an attorney and you should put care into choosing who to appoint.  A power of attorney is a powerful document – which is what you want when you need someone you trust to be able to handle your property when you cannot.

1.    Your first choice for an agent should be that the child is responsible and trustworthy. After all, this person will be managing your money, writing checks on your account, and may even have the power to sell your property. If your oldest child has a drug, alcohol or gambling problem, or is recently recovering from one, you should not select them as your attorney-in-fact simply because they were born first.
2.    Your agent should ideally live near you as well, since it will be easier to handle things on your behalf. However, if the most responsible child lives far away, and another child lives nearby, you could appoint them both to act either jointly or separately.  That way the local one can run down to the bank for you, or write a check to the plumber, but the other one can manage your stock accounts and retirement plans.  Make sure their relationship is such that it won’t lead to conflicts or the inability to make decisions.
3.     If one of your children is going through a divorce or other stressful event, you may not wish to select them as your attorney-in-fact at this time, in order to minimize the stress in their life.
4.    Your agent should know where your important papers are kept, in case they should ever have to access them.
5.    Your agent should be someone you think can handle the responsibility. In the event of your incapacity, which will no doubt be stressful enough on your family, who is the child who could step up and handle those things that need to be dealt with – writing checks to pay the mortgage, signing contracts for medical facilities, arranging for home care and cashing out your retirement plan to pay for it, maybe even remortgaging or selling your house.
If none of your children fit this description, or if you have no children, you should still select an attorney-in-fact, or the court will select a guardian for you in the event of your incapacity. I had a client select a friend from her widow support group, another one chose a trusted niece. This is not a decision to be made lightly, but it is a decision that has to be made.