By Martin M. Shenkman, Esq. The tragedy of Terri Schiavo and the publicized legal battle that emerged between her family members of whether to withdraw life-sustaining measures, caused millions of clients to rush into preparing end-of-life documents. Raising people's consciousness to focus on these issues is a positive development that emerged from the tragedy, as long as clients have a thorough understanding of the intricacies of crucial end-of-life decisions and do not make uninformed decisions based on the 60-second media sound bites. Understanding the following misconceptions will equip advisors to address in a practical and efficient manner the many questions clients will pose. Because there are differences in state laws, and because these laws will undoubtedly be revised to address the aftermath of the Schiavo tragedy, you will need to review your applicable state law. This article focuses on five issues that are often overlooked. Misconception 1: Clients need only a living will. A living will is not enough. A health care proxy is also essential. A health care proxy, also called a medical power of attorney, is a legal document through which clients designate a trusted person (agent) to make health care decisions for them if they are unable, because of a disability or an illness, to do so. Although the two documents are integrally related, having them prepared and executed as independent documents may facilitate their use in many instances. The focus of the health care proxy is to appoint someone as an agent to make health care decisions, as well as name several successors. Joint agents, however, should never be named.
Misconception 2: Your clients need only a health care proxy. Numerous clients may also have the impression that a health care proxy is all they need. This perception is just as dangerous as only having a living will. In addition to a health care proxy, clients must also prepare and sign a living will, which addresses a range of important legal, financial, religious and medical issues. The living will should provide the general directions and parameters for the agent appointed under the health care proxy to follow. It should specify how a client should be cared for in the event of grave illness. What decisions should be made in the event of a terminal illness? What time frames should apply? The client may have very different feelings if he or she has a life expectancy of 12 months instead of 30 days. Many standard forms ignore this vital detail.
Misconception 3: Key issue to address is whether your client wants heroic measures. Should mechanical means be used to prolong life? That may be a vital decision, but it is far from the only topic living wills need to address. The Terri Schiavo tragedy did not end with her death. Fights continued over whether she should be buried or cremated, and even the location for the burial or interment. The sad lesson is that every client should make all personal end-of-life decisions, not just the decision concerning heroic measures. Most standard forms, even most lawyer prepared forms, fall short of the comprehensive communication that living wills should really provide family and loved ones. Additional decisions to address include:
Misconception 4: Religious issues are not critical to address.The initial reaction of many clients is to dismiss religious issues. Most people who sign living wills while they are healthy are not concerned about religious issues. Many of these same people, when faced with a major catastrophe such as terminal illness or loss of a close family member, however, fall back to their religious roots for guidance and comfort. Unfortunately, it may then be too late for these clients, or their loved ones, to remedy the situation.
Most living wills completely ignore religious implications. Living will forms provided by religious organizations often do not address the dichotomy between burial and end-of-life medical decisions. Thus, every client must tailor whatever living will form they use to expressly reflect their wishes. Together, the lawyer and the client must consider the religious implications of the entire health care process while the client is competent, so in the event the family experiences tragedy, no one will regret what was done. Religious issues affecting living wills and end-of-life decisions include:
Misconception 5: A simple document from the Internet will suffice. A combination of a comprehensive living will, health care proxy and a plan of communication are essential to achieve any client's wishes. Too many clients rely on simplistic commercial forms purchased in office supply stores or obtained from various organizations or Web sites. Most of these forms do not address the myriad of issues highlighted in this article. Often, the commercial forms are limited to simple instructions such as "pulling the plug," but statements such as, "I do not want heroic measures if I am terminally ill" do little to clarify tough, emotional issues or ease the burden of loved ones charged with making the decisions. Many of the simple commercial forms are not adequate for a client to communicate his or her personal, specific or religious wishes to friends, family or others. Summary Merely signing a living will or health care proxy, especially one that is too vague and does not address the level of detail discussed in this article, will accomplish little in extreme situations. It may not avoid the strife that afflicted the Schiavo family. These battles, even though not covered in the media, occur with tremendous frequency. Documents must be prepared with proper care, attention and thought. Clients must discuss these issues with family and loved ones, religious advisors, and medical providers in order to potentially avoid the same strife, and pain, Terri Schiavo's family experienced. About the Author Martin M. Shenkman, CPA, MBA, J.D., an attorney who concentrates on estate and tax planning and estate administration, has a private practice in Teaneck, N.J., and New York City. Shenkman is a regular source for business publications, including The Wall Street Journal, Fortune, Money, The New York Times and others. He has a weekly radio show on Money Matters Financial Network. Shenkman has published 34 books including: Living Wills & Health Care Proxies: Assuring That Your End-of-Life Decisions Are Respected, which is currently in process. He's admitted to the bar in New York, New Jersey and Washington, D.C., and is a CPA in New Jersey, Michigan and New York. Please call Tim Enstice at 757-962-8213, or e-mail us at email@example.com, for more information.
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