Will Your Health Care Directives Protect You?

by | Mar 21, 2022 | *Financial Awakenings, Estate Planning, Health, Retirement Planning, Weekly Column

For decades, financial experts like myself have implored you to have a health care power of attorney. Now, some health care experts say you don’t need one because they don’t work.

“Decades of research demonstrate advance care planning doesn’t work. We need a new paradigm.” That jarring statement came from Dr. R. Sean Morrison, chair of geriatrics and palliative medicine at the Icahn School of Medicine at Mount Sinai in New York. He is a co-author of a paper written for JAMA, October 21, 2021, and was cited in an article by Judith Graham published January 6, 2022 at Kaiser Health News.

One reason for the limited value of advanced planning, according to the medical professionals interviewed by Graham, is the difficulty of trying to anticipate the almost limitless hypothetical scenarios that may present themselves at the end of one’s life. “Many highly educated people think documents prepared years in advance will protect them if they become incapacitated. They won’t,” said Dr. James Tulsky, who is chair of the department of psychosocial oncology and palliative care at the Dana-Farber Cancer Institute in Boston.

This is strong medicine for the “highly educated people” in the financial planning and legal professions who have long preached that having a will and durable powers of attorney are Estate Planning 101. My first response was to wonder why the medical profession has apparently sold us an empty promise that patients’ wishes would be treated seriously. My second was to wonder whether financial and legal professionals were assuming promises that the medical professionals never made.

There were several reasons given for doing away with durable powers of attorney and health care directives: preferences change over time and the directives become outdated; when people use standardized forms (popular with living wills) the directions may be vague and even contradictory; the documents are not available when it’s time to make decisions; services to support a patient’s wishes are not available; and those with decision-making power may disagree with a patient’s stated preferences.

For me, these are not reasons to abandon health care directives, but cautionary reminders to apply them thoughtfully. From a financial planner’s perspective, health care directives and powers of attorney are not simply one-time forms. They are specific, personalized legal documents that are routinely reviewed and periodically updated. I also recommend attaching an addendum to your health care directive, such as the “Good To Go Tool Kit” from Compassion and Choices, that removes vagueness.

The unavailability of a POA during a crisis or decision point has always been a legitimate issue. In my opinion, it is one of the biggest reasons they are not followed. I routinely urge clients to put these documents on file with local hospitals, all personal health care providers, and especially the agent designated to make decisions.

The most concerning issue is the possibility of family members disagreeing with patients’ directives. This is especially likely if the agent named in the POA is dealing with their own grief when faced with following instructions to not keep a loved one on life support. Yet in other cases, the person who has been trusted and empowered to follow the patient’s wishes may have a compelling reason for making different choices. Again, this issue is best addressed with a detailed addendum to the documents.

My conclusion is that while these medical professionals have raised very valid points, most can be solved with attention to detail, follow-through, and keeping documents up to date. The reality is that no legal document is an absolute guarantee that the signer’s wishes will be fulfilled. The only real guarantee is that, without the documents, your wishes won’t have a chance.

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