Living Wills vs. Advance Directives: What Families Get Wrong

Peter Klenk explains the importance of living wills and advance directives, including how they communicate your medical wishes when you can no longer speak for yourself. He also discusses why these documents should work together with a medical power of attorney and why sharing them with the right people is essential.

Transcript

Hello, it’s Peter Klenk, trusts and estates attorney, here to talk to you once again about death and taxes. So sit back with your espresso, your single malt scotch, relax, and let’s talk about this fascinating subject. I’ll try to make it as interesting and as informative as I can.

Today the subject is living wills versus advance directives. What do people get wrong about this? What don’t they understand?

It’s a very important subject because everybody 18 or older really should have one. You can die without a will to sort out the money when you die. You can have maybe no financial power of attorney. It will go to a judge and have you declared incompetent. But without a medical power of attorney, living will, or advance directive, in an emergency situation, things that are vital to you, obviously your life, will be delayed.

We don’t want to be running to court and deciding what medical procedure is supposed to happen to you at two in the morning because the judge isn’t there. He is asleep. So you need these in place, right?

So what are they? What is the confusion?

Well, first of all, most of the confusion comes from the fact that they’re basically the same thing, right? It depends on what state you’re in. It just depends on how old the person is or how old the attorney you’re dealing with was, what they called them. But the idea is that the living will, an advance directive, what they’re talking about is saying, “Hey, here’s what I want to have happen to me if the doctor and my surrogate or agent has decided that I’m ready for DNR.”

Right? What should happen?

This is an important decision because, you know what, doctors don’t like getting sued. They don’t want to make a decision that ends your life and then get sued by your family later on. They want a release. They want everybody in agreement, but they also want to know what you want.

Now, if you have a medical power of attorney, you’ve picked somebody to speak for you, as you should, right? Somebody who is respecting your wishes. So they’re with the doctor saying, “Hey, this is what you would do in this situation.”

But remember, the doctor, in all likelihood, has never had a chance to talk to you. You probably were brought in on an ambulance, and they have only seen you in the state that you currently are. Their medical exam, in this scenario, has decided that you’re not going to recover. You’re never going to open your eyes and have a conversation with the doctor about what you want.

Because if the doctor thinks that you’re going to wake up again and they can talk to you, they’ll wait because they want to know what you want, right? They really do. And legally, if they think that you’re going to be able to wake up and talk to them, if they remove all of your life support and you die, it’s like murder, right? So, you know, they don’t want to go to jail.

We’re only talking about a situation where everybody’s agreeing you’re not waking up again. It’s over. Put a fork in you. That’s it. You’re done, right?

So in that scenario, what do they do?

Well, your medical agent is speaking for you, but again, the doctor wants to know what you wanted. That’s what the living will is. That’s what the advance directive is. It’s your explanation to the doctor saying, “Well, here are my thoughts about that.”

Now, this is really a message for the doctor because if you’ve done everything the right way, it’s not for your agent. They should know what you want. That’s the reason why you picked them.

You can’t be shy about talking to your medical agent and saying, “Hey, here are my thoughts about pulling my plug and making me DNR.” So this whole scenario assumes you had that conversation with them because you better have, right? How can they speak for you if they don’t know what you want?

So they know. We’re talking about the doctor who doesn’t know you from Adam, right?

Now remember, these doctors, they’re human beings. They have their own opinions about these things, about never removing medical care. Maybe that’s their personal belief, or they might be quick on the trigger. You don’t know. You don’t know this person, so they want to know what you want.

How do you articulate that?

I’m letting you know every state has a form that they like you to fill out, and the doctors, in general, want you to use that one because they see it every day. They know what that means, right? They got training in that.

Now, there are other forms you can get from anywhere. I mean, there’s no law saying you have to use the state form. But if you use another form, remember that’s something the doctors haven’t seen.

So it’s an emergency situation. If you get one of these forms, and I’m telling you, they’re out there. They’re silly long. They go through all sorts of stuff, and I say that because it can be very confusing.

It’s almost like the more data you have, finally it gets to the point where it’s not more precise. It’s actually more confusing for everybody.

But if I’m a doctor and I don’t like being sued, and I see a form I don’t like, I might say, “You know what? I’m sending this over to legal.”

And at two in the morning, guess where legal is? They’re in bed sleeping. Decisions are not going to be made until the lawyer has time to get to it and tell the doctor, “Yeah, you’re covered. Don’t worry about it. That’s what they said.”

So come on, guys. Part of this is you pick the human being who’s going to speak your wishes. But the other part, you have to be clear and concise to the doc.

Again, using the state-approved document is a way to do that, in my one man’s opinion, right?

Depending on the state, it basically is fairly concise. New York’s kind of long, Florida’s kind of long, but Pennsylvania and New Jersey are very concise. It basically says, “Hey, look, Doc, if you and my agent have decided that I should be DNR, here are my thoughts.”

Then there are places for you to initial that say, “Hey, in that scenario, I don’t want to be, you know, watered and fed anymore. Just let me go.” Or, “Yeah, I still want to.” Or if my heart stops, should you rush in the crash cart and start it again, or should you just let me go?

There’s a series of things that the legislatures have decided this is what they want, and they’ve done this in consult with doctors. The doctors I’ve talked to really like the document, right? It gives them what they need.

They know if you checked off saying, “Well, I still want to be fed and hydrated,” and your kid comes in and says, “Nah, Mom wouldn’t want that,” the doctors will look and say, “Well, apparently she does. It says so right here. She initialed it.”

So, “Hey, I agree with you, kid. She’s brain dead. We should let her go. But you know what? She checked the box saying she still wants to be hydrated. That’s what we’re going to do. That’s her wish,” right?

So that’s the document that reflects that and gives that information to them so that your wishes are respected.

Now again, you should be having that consult with your kid and tell them, “Hey, I checked the box that says I want to be hydrated.”

And if your kid says, “Well, that’s ridiculous. I won’t do that,” pick somebody else. That’s what you should do, right? You want to make sure that your agent reflects your wishes to the doctor, not their own personal opinions.

So you can’t be shy about this one.

Look, we always tell people, if you want to lock up your will, your revocable trust, these other documents, and we give them to your people when you’re dead, that’s fine. I mean, we can come and get them when you’re dead. There’s no rush. You’re dead.

But these medical powers of attorney, these living wills, you’ve got to share, and you’ve got to talk to them about it. You’ve got to make sure everybody understands and let them have a chance to talk to you and ask questions.

I don’t know if you know this, but kids sometimes don’t listen to what their parents say very clearly. If you’ve got a kid, I know you’re going, “Yeah, yeah, I know that.”

But it’s true, and they might even say to you, “Oh, don’t worry. I remember what you said.” But it’s important to be clear about these things so that they can respect your wishes.

So living wills, advance directives. What do people get wrong?

First of all, they usually don’t do them right, or they don’t share the information, make it articulate, or they don’t have it.

Another thing is pairing it with the power of attorney, right? You have a living will that says, “Hey, Doc, here’s my message,” but you haven’t granted your agent the right to speak for you in the power of attorney portion.

Well, then they’re just people standing in the hallway, right? Doc has a list, but they want a signature. They want to be released. They can’t get a signature from you because you’re essentially dead, so they need it from an agent.

So the biggest problem is doing the living will portion or the advance directive portion and not putting in the power of attorney. Right, that’s also a big thing.

So you’ve got to have the package. You’ve got to share it, and there you go. That’s important.

This is very important, and you’ve got to have this from 18, right? On your birthday, people bring their children into our office all the time to sign because once you hit 18 in the U.S. legal system, you’re a legal adult and your information’s private.

And if you haven’t selected somebody, then we’ve got to go to the defaults. But they really want you to have selected somebody. They want to make sure it’s the person that you respect.

That might be your parents, but you might not want your parents to know your personal information, or your thoughts about DNR might completely be alien to your parents.

So everybody wants to know truly who you want as you’re going through. Whether you’re 99 or 100, 105, or if you’re 18, you really need this in place.

So that’s the story. Peter Klenk, trusts and estates attorney. Like and subscribe, please, so as I make more of these in the future, you are able to hear my soothing voice.

You go out and have a great day. Bye now.