Who Makes Medical Decisions If You Didn’t Put It in Writing?

Who will make medical decisions for you if you're unable to speak for yourself? In this episode, Peter Klenk explains how medical powers of attorney and living wills work, who state law may appoint if you don't have a plan, and why putting your wishes in writing can spare your loved ones conflict, confusion, and costly court proceedings.

Transcript

Hello, it's Peter Klenk, Trusts and Estates Attorney, here to talk to you about death and taxes—everybody's favorite subject. I know.

Hopefully you're settled someplace warm, with a cup of coffee, a glass of wine, or whatever it is, sitting back and ready to listen to some uplifting comments about this fascinating subject.

So, what's the subject today?

Who makes medical decisions if you don't put it in writing?

Who is this person? Who are these people that might step up for you?

Now, when is this important?

Well, look, maybe we're all going to be the lucky ones who someday, at a ripe old age with all of our mental faculties in place, go to sleep one night and just don't wake up. That would be the perfect thing, right?

But that doesn't always happen.

You've seen the world around you. There's a chance that someday you'll be alive and unable to make decisions for yourself. It might be short-term. You might just be in the ER for a while. It might be long-term—dementia, Alzheimer's, a stroke, or something like that.

So, you have to plan for it. You really should.

If you don't, and we're going to go through this, it's just unpleasant for you and your entire family. Having the right person speak for you and make sure your wishes are respected is so important.

So, the situation might come up, and if you don't do anything—and, of course, what should you do? You should have a medical power of attorney, one that grants somebody you trust the authority to take care of you and make decisions for you. Somebody who will carry out your wishes.

You should also have a living will.

In Pennsylvania and New Jersey, these are merged together in one document, but the living will is where you say:

"Hey, Doc, you don't know me, but you've decided, along with my medical agent or surrogate, that it's time for a DNR and that I should go. Well, here are my thoughts about that."

This allows you to communicate with a doctor who doesn't know you. They want to know what your wishes are, and they can read that document and understand them.

Now, if you don't do any of that, we're stuck.

You're in the hospital, and the doctor has determined that you can't make decisions. He looks out in the hallway. Who's there?

Now, you know your family. I don't know your family.

There could be 18 people standing there, and they all firmly believe they know exactly what you want. Of course, they also have 18 different opinions based on their own experiences and things they heard you say throughout your life.

They might all agree.

They might not.

You can imagine the chaos that might ensue.

Even if the doctor listens to one person over the others, somebody may be upset because they think the decision being made—whether to keep you alive, whether you should have surgery, whether you should be DNR—is the wrong one.

Now your family has hurt feelings.

This is my mantra. You've probably heard it in other podcasts. You want your family to at least be able to stomach having Thanksgiving together.

These are the kinds of decisions that stop people from speaking to each other forever.

Let's try to avoid that.

Let's at least give them those two hours of Thanksgiving every year.

So, what happens?

Well, if you don't have anybody designated and everyone agrees, then the doctor is going to rely on whoever the law says is your representative.

That's what's going to happen.

That's who's going to make the decisions about surgery, no surgery, DNR status, and everything else.

Now, who is that person?

Again, it depends on your state.

I don't know where you're listening from, but in almost every state I know of, if you're married, it's your spouse.

Even if you have children from another marriage, children from the current marriage, or living parents, it doesn't matter. It's your spouse.

If they say, "Pull the plug," then it's plug-pulling time.

If they say, "Keep them around," then it's keep-them-around time.

Even if that's not what you really wanted.

Remember, the doctor didn't know you. They don't know anything about you. They only know what evidence exists, and if the only evidence is that you're married and the law says your spouse speaks for you, that's all they have.

So, without a plan, that's where you're going to end up.

Now, if you're not married, it could be your children. It could be your parents. It could be other family members.

It's not going to be friends.

So, if you've been living with somebody for a long time, if you have a partner you never legally married, then legally they're essentially just a roommate.

They have no say.

If you want a friend, partner, lover, or significant other making those decisions, you need to write it down.

Otherwise, it won't be them.

It will be somebody else in your family because that's the default rule almost everywhere.

The law assumes that most people would want biological family members making these decisions.

So, if that's not what you want, you need to create a plan.

And remember, if you've never talked to anybody about this—not your spouse, your parents, your siblings, or your children—they don't really know what you want.

You may think your wishes will be respected, but nobody actually knows what those wishes are.

If a DNR decision is made and you die, it won't matter to you anymore.

But your loved ones will spend the rest of their lives wondering whether they made the right call.

That's a terrible burden.

It's much better to make your wishes known so that someday they can look back and say:

"I didn't like it, but I did what Mom wanted."

"I did what Dad wanted."

"I did what my brother wanted."

That's a much easier thing to live with than wondering whether you made the wrong decision.

Can things get worse?

Absolutely.

Let's say you have two children.

One says, "Mom wanted this."

The other says, "No, Mom wanted that."

They can't agree.

Now the doctor is sitting there thinking, "Man, I've got golf to play."

Nobody is making decisions.

Maybe everything just sits there while the family fights.

Or it gets even worse.

The family hires a trusts and estates attorney, like our firm.

We get hired to handle these situations.

We have a litigation department.

Off we go to court.

Now a judge has to listen to the evidence, whatever that evidence may be.

A lot of times it's nothing more than:

"At Thanksgiving, Mom said this."

"Well, at Christmas, she said that."

The judge has to sort through all of it and decide who should make the final decision with the doctor.

Meanwhile, you're sitting in the hospital.

I don't think that's what you want.

Having your family upset and fighting while you're sitting there, pumped full of whatever medications they're giving you, is probably not part of your plan.

Not having a plan means not doing some of the world's most basic legal preparations.

That includes:

• A medical power of attorney that allows someone to make medical decisions for you.
• A living will that says, "Here are my thoughts about DNR decisions."
• A financial power of attorney that allows someone to pay your bills, take care of your cat or dog, pay your child's tuition, and handle all of the financial matters that continue while you're lying in a hospital bed.

These documents help keep things orderly.

More importantly, they help ensure that your wishes are respected.

Let's also talk about the human beings involved.

You might think the default person chosen by law is fine.

But maybe that person hesitates.

Maybe they're incapable of making a difficult decision quickly.

That's not good for them or for you.

Or maybe they have strong personal or religious beliefs. They may believe that withholding food and water is wrong under any circumstances.

You may disagree with that position.

But if they're the decision-maker, that's what they're going to do.

So, you need to choose somebody who reflects your wishes and your values and who is capable of carrying them out.

If you don't make a plan, the law chooses for you.

And that person may not be the one who can—or will—carry out your wishes.

So, do your plan.

If you're in New Jersey or Pennsylvania, we can help you with that. We do it every day, and we walk through these decisions with you to help make sure the right person is selected.

If you're in another state, find a trusts and estates attorney who focuses on estate planning.

Create a plan now so you can avoid the estate litigation department later.

And, as my ongoing mantra goes, your family can still have Thanksgiving together for two hours every year without a fight.

Well, okay—they might still have a fight.

But at least they'll get together for Thanksgiving for two hours.

All right, guys, that's the podcast for today.

I hope you enjoyed it. If you did, like and subscribe. I send these out regularly, and it's always something fascinating.

I'd love to keep having these conversations with you.

Take care. Be well.

I'm Peter Klenk, Trusts and Estates Attorney, helping you with your legacy.