Estate Planning

Yesterday I discussed “Do Not Resuscitate” orders, and explained what they are.
 
One of the most touching stories I have ever heard about a “Do Not Resuscitate” order was told by Dr. Atul Gawande in his best-selling book, Being Mortal.
 
Dr. Gawande is a nationally recognized surgeon. His father, who was also a surgeon, was diagnosed with inoperable cancer when he was in his early 70s. Although everything possible was done for Dr. Gawande’s father, his condition deteriorated to the point that he was confined to bed. He was adamant that he did not want to be in pain, and did not want to be resuscitated.
 
Dr. Gawande’s father eventually began to receive hospice care at his home, and was given medications for comfort. Dr. Gawande’s mother, who is also a doctor, stayed by his side. However, when she couldn’t wake him up and his skin began to turn blue, she panicked and called 911. When Dr. Gawande’s father woke up in the hospital, he was furious!
 
This story illustrates the conflicts associated with “Do Not Resuscitate” orders and end-of-life decisions. Even doctors are not immune to the strong emotions they incite.
 
I highly recommend the video Being Mortal, which was aired on PBS in 2015, and in which Dr. Atul Gawande discusses end-of-life issues in detail.
 

You have probably heard of CPR, or Cardio-Pulmonary Resuscitation. If your heart stops beating or you stop breathing, Cardio-Pulmonary Resuscitation procedures are done to save your life.
 
As a former hospital critical care nurse who has seen many patients resuscitated, and then kept alive for months on life-support in a comatose or vegetative state, I have very strong feelings about “Do Not Resuscitate” orders. For many patients, resuscitation was a great disservice to them, and only prolonged the dying process.
 
We tend to associate “Do Not Resuscitate” orders with elderly people who are terminally ill. However, they are appropriate for anyone with an end-stage terminal illness, including young cancer patients, and even terminally ill children.
 
Unlike a Living Will or Medical Power of Attorney, which are documents that you sign for yourself, a “Do Not Resuscitate” order must be given by your doctor after a consultation. If your doctor does not give a “Do Not Resuscitate” order, medical personnel must administer CPR.
 
If you have a “Do Not Resuscitate” (DNR) order, you should display it on the front door of your home or on the refrigerator, so that emergency medical personnel can find it easily. If you are a patient in a health care facility, your doctor will put a “Do Not Resuscitate” (DNR) order on your chart.
 
Like all advance medical directives, a DNR order can be revoked at any time. They do not apply to other kinds of medical care, such as treatment for pain, bleeding, or broken bones. They only apply to resuscitation procedures, like chest compressions and breathing tubes.
 
If you, or a loved one, is facing a life-threatening illness, I highly recommend the video Being Mortal, which was aired on PBS in 2015, and in which Dr. Atul Gawande discusses end-of-life issues in detail.
 

A Medical or Health Care Power of Attorney is a document that names the person you want to make medical decisions for you when you cannot make them for yourself.
 
The story of Forrest Stone illustrates why a Medical Power of Attorney is so important. (This incident happened in Virginia, but it could just as easily have happened in Colorado.)
 
Forrest was an 18 year old high school student when a snowboarding accident sent him to the hospital in critical condition. He was in a coma and on a ventilator in the intensive care unit. Surgeons actually had to remove the front third of his skull so that his brain could swell without causing further damage.
 
Legally, Forrest was an adult. Under HIPAA, the Health Insurance Portability and Accountability Act, his medical issues were none of his parents’ business, even if he was still covered by their insurance.
 
As her son lay in a coma, Forrest’s mother had to hire an attorney and appear in court for a “mini trial” to get legal guardianship to make medical decisions for her son. The court even sent a guardian ad litem to the hospital to read the proposed legal documents to Forrest while he was in a coma, and find out if he had any objections. Ultimately, Forrest’s mother got guardianship of her son, but it was costly, time-consuming, and emotionally draining.
 
Every adult should have a Medical Power of Attorney, because we never know what the future holds.
 
Unlike a Living Will, your Agent’s authority does not just apply when you are terminally ill or in a persistent vegetative state. It applies in every situation when you are unable to make medical decisions for yourself. However, your Agent must carry out the wishes expressed in your Living Will if you have one.
 
If you have questions about Medical Powers of Attorney, please call my office.
 

In Colorado, a Living Will is called a “Declaration as to Medical or Surgical Treatment.”
 
One of the most dramatic stories to illustrate the importance of having a Living Will is that of Terry Schiavo.
 
Terry suffered a cardiac arrest when she was only 26 years old. She was resuscitated, but suffered massive brain damage. After 2 1/2 months of hospitalization without improvement, she was diagnosed with “persistent vegetative state,” and transferred to a long-term nursing care facility.
 
Terry Schiavo’s husband was awarded legal guardianship and argued that Terry would not have wanted prolonged artificial life support without any hope of recovery. He believed that she would have wanted her feeding tube removed. Terry’s parents argued in favor of continuing artificial nutrition and hydration. They believed that Terry would have wanted to live. The costly legal battle lasted 15 years, before Terry Schiavo’s feeding tube was eventually removed and she passed away.
 
A Living Will is a document that only goes into effect in two situations: (1) You are unconscious or incompetent and have a terminal condition. (2) You are in a persistent vegetative state that is not a terminal condition.
 
Your Living Will contains your instructions regarding the administration of artificial nutrition and hydration, and of life-sustaining procedures. Under Colorado law, a “life-sustaining procedure” is any medical procedure that only serves to prolong the dying process. This may include cardio-pulmonary resuscitation, defibrillation, medications, and surgery. The Living Will also contains instructions about whether or not you want to make anatomical gifts.
 
Regardless of your decision to accept or reject life-sustaining treatment, medical professionals will continue to provide all necessary treatment to relieve pain and alleviate your suffering.
 
Your Living Will may be revoked or amended at any time. If you do revoke or amend a Living Will, it is very important that you provide your doctor, family, and anyone else with the most current version so they are aware of your wishes. So long as a Living Will appears valid and the medical professionals are not aware of any fraud, revocation, or that it was improperly executed, the attending physician may rely on it without the threat of liability.
 
A Living Will must be witnessed by two uninterested parties, and should be notarized if possible.

If you have ever been hospitalized, you were probably asked for your advance medical medical directives.  This is because adults have the legal right to consent to or refuse medical treatment, and medical facilities that receive Medicare or Medicaid funds must tell their patients about these rights.
 
Advance Medical Directives allow you to declare your wishes in written documents, to be used if you are ever in a situation in which you cannot communicate them.  They do not take away your right to make medical decisions if you are able to do so.
 
Colorado recognizes five types of advance medical directives:

1. Living Wills
2. Medical/Heath Care Powers of Attorney
3. CPR Orders/Do Not Resuscitate Orders
4. Disposition of Last Remains Declarations
5. Organ and Tissue Donation Declarations

If you do not have advance medical directives and become incapacitated due to an injury or illness, your loved ones may have to go through a court process to obtain legal guardianship to be able to make medical decisions for you. Even then, your family may not know your wishes. Not having advance medical directives can create conflict between your loved ones.
 
You should provide copies of your advance medical directives to your doctor, family members, health care agent, and any medical facility you may be admitted to.