Practice Management

A guide to helping create living wills

Documents should express the client's wishes as clearly as possible and be updated regularly

Oct 4, 2009 @ 12:01 am

By Amy Florian

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The debate about health care reform has resulted in at least one potential benefit: People are talking about end-of-life decision making.

No matter where you stand on this sensitive issue, the reality is that decisions affecting a patient's treatment and care are made every day in the final weeks, months and years of life.

As a financial professional, you may find clients turning to you for information, especially as they approach retirement age or face issues with aging parents. It is essential that you are educated on their choices in order to guide them wisely.

One commonly misunderstood document is the living will. It is one among several types of advance directives that allow people to state “in advance” how they wish to be treated if they are unable to make such choices themselves.

Contrary to what many people think, having a living will doesn't always mean that an individual is stating that they want to limit their treatment or “pull the plug.” The documents are also used to request every medical intervention available.

They can list different desires for different situations. A client may want different treatments when dying of cancer than when in a coma from which recovery is unlikely. A living will should be the clearest description possible of a person's desires.

It's also a misconception that a living will is followed whenever serious illness occurs. If someone is conscious and capable of making decisions, their own words take precedence. They are required to sign permission forms before procedures are done.

Living wills take effect only when a patient is unconscious, demented or otherwise incapable of making his or her own decisions. From a legal standpoint, there is a hierarchy of decision makers, beginning with the patient's spouse and adult children, but the intent is that they abide by the wishes expressed in the living will.

The advantages of living wills are as follows:

• They promote honest conversations within families.

• They can help prevent legal battles and courtroom fights.

• Decision makers know what the person wants, and therefore, they don't feel as guilty about treatment choices.

But there are some common problems associated with living wills.

• Only about 20% complete one.

• Wishes are often presented in vague and unspecific language.

To be sure, even with more accurate detail, gray areas are inevitable because no one can foresee every possible situation. These include:

• The perspectives of a healthy, active person can be changed dramatically by illness, and too few people update their documents as they age or become incapacitated.

• Many patients don't give copies of their living wills to anyone, rendering the documents inaccessible when decisions need to be made.

• No state laws make a living will legally binding on health care professionals. If family members disagree with the living will, medical providers are likely to go with the family's desires. They are, after all, the ones who can decide to sue.

But just because there are a number of valid concerns about living wills doesn't mean that financial advisers should discourage their clients from creating the documents.

Instead, strongly encourage living wills that are as specific as possible. Many of the popular forms have questions that prompt complete answers and that cover situations that a person may not have considered before.

Some, such as the Five Wishes document available at agingwithdignity/org/five-wishes.php, even add information such as comfort measures for a person's room such as music, lighting, blankets, religious items and the messages they would like to leave with loved ones.

Once you assist your client in completing a living will, ensure that it is signed and notarized.

Distribute copies to family members, primary care doctors and specialists, and hospitals involved in the person's care. Update the living will every year in the review meeting, and distribute new copies to all necessary parties.

Besides the living will, ensure that your client has a durable power of attorney for health care.

In this legally binding document, your client designates the people who they wish to make medical decisions for them any time they are unable to do so themselves.

Arrange a meeting at which the designated people and your client go over the living will together, allowing a full understanding of your client's desires and the rationale for them.

Amy Florian is chief executive of Corgenius Inc., which specializes in training financial professionals how to interact with grieving and emotional clients.

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