What You Should Consider When Establishing A Medical Directive

In this article, I’m going to cover some of the considerations that come into play when you are establishing an advance medical directive. The first thing I want to do is establish the difference between a Living Will, a Living Trust, and a Will In An Advance Directive.

What is a Living Will?

So a Living Will, is a directive to your agent that says, “If my doctor determines that I have a terminal illness, where the application of artificial life sustaining procedures would serve only to delay the dying process, then I direct that such procedures be removed and that I be allowed to die naturally.”

And so what we’re contemplating in that scenario is the “Terri Schiavo” situation. Now, to refresh your memory about Terri Schiavo and make a long story short, she lived in Florida and she was in a persistent vegetative state. Her husband wanted to remove the feeding tube and hydration. Her family thought that she had a chance of recovery because one of her relatives alleged that she smiled at her. And so there was a disagreement that went all the way to the supreme court of Florida, and ultimately, the husband won at court and gained the right to remove her artificial life sustaining procedures.

Now, what you’re doing when you establish a living will, is you are taking that decision out of your agent’s hands and your saying, “I direct you to remove those artificial life sustaining procedures if I’m ever in that situation where I have a terminal illness as confirmed by my doctor. And I would die without artificial life sustaining procedures.” And so you’re basically saying, pull the plug, I don’t want to linger. If I’m going to go, it’s my time, let me go, right?

So that’s what a Living Will is. It’s completely different than a Will or a Living Trust. There’s a testamentary documents that serve to distribute assets. Living Will, regarding that kind of treatment that you are going to receive if you’re ever in a Terri Schiavo situation.

How Does An Advance Directive Come Into Play?

The advance directive is where you’re appointing a person to make healthcare decisions for you if you are ever in a scenario where you are unable to make an informed choice. And so there are a couple scenarios that we contemplate when it comes to advance medical directives. One is a persistent vegetative state, but there are other situations where you might be unavailable to make an informed decision. An example of this may be because you’re under anesthesia

So let’s say, the surgeon comes to your agent and says, “We have two procedures that we can do to save your life. One of them has been shown to increase the likelihood of survival but is less likely to lead to a full recovery and high quality of life. The second procedure is more experimental and it isn’t shown to be as likely to save your life but is more likely to lead to a high quality of life if you survive.”

What you need to do when you establish an advance directive and select your agent is, you need to make sure that your agent’s values and judgement are going to align with yours and what your agent is going to know what you would have wanted in that scenario. And it’s critically important that you choose the right person and arm them with as much information as possible about your wishes.

Another consideration in selecting an advance medical directive agent is their proximity. For example, your child is the person that you want to serve but they live in California and you’re in Virginia. You have to keep in mind that it’s going to take them twelve hours to get to your side in case of emergency. You’re going to want someone who is able to make a decision about your health care treatment without a twelve-hour delay in the event that something catastrophic has happened. Be sure to keep that in mind.

Another reason you might be unavailable to make an informed decision is if you are incapacitated. And what we’re thinking about here is the scenario where you’ve come down with dementia. Dementia is a cruel disease and if you have dementia it is going to entail housing decisions; because the setting in which you live determines the care that you receive.

And so you’re going to want to appoint an agent who knows your wishes. Now, you might be the kind of person who is a realist and says, “I know I’m getting older, I want a community where I can age in a dignified way but in a way that’s appropriate for my level of need. And so I want independent living first, and then I wanted assisted living and then later we’ll talk about further escalations of care.” You can do that. There are a lot of choices in the market now for assisted living facilities and retirement communities.

But maybe you’re the kind of person that wants to live in their home for as long as its medically reasonable and the cost of in home health care is of secondary importance to you. So you might need to choose someone who knows that about you and is going to have the guts to keep you in your home for as long as it’s medically reasonable because it does entail more work living at home and managing someone’s care from home. It’s much more efficient to do that in a retirement community setting. So that’s the final consideration that I will put to you if you are selecting an advance medical directive agent.

For all of these reasons it’s crucial that you start thinking about establishing a medical directive sooner rather than later. If you are interested in learning more, set up an estate planning consultation with Misha Gill today. You can make a consultation appointment today through his office number (703) 553-2577 or directly through his email [email protected].