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In Our Judgement: In Law & In Life

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Estate Planning

The official Frantz, McConnell, and Seymour, LLP blog.

MEDICAL DIRECTIVES for End of Life Decisions

While end of life decisions may be a topic most people want to avoid, having these conversations with your family members can actually do more good than harm. 

Having a signed Medical Directive [Health Care Power of Attorney or Advance Directive] can hopefully avoid situations like the much publicized Terry Sciavo case in Florida and the futile, unnecessary medical care at the end of life, not to mention the unnecessary costs of such care.  The decisions reflected in a signed Medical Directive will not only provide your physicians with the information they need to assist you in meeting your goals with respect to the medical care you may or may not want, it can also relieve your family members of the burden of having to make those end of life decisions on your behalf.  It becomes even more important to have a Medical Directive in place if you have been diagnosed with a chronic illness, since it may be the only way you can avoid unwanted treatment.  Discussing your decisions about End of Life care with your family can also help avoid conflict between family members who may not agree with your decisions and those who do, making an already stressful and difficult time for your family even worse. Despite the importance of having a Medical Directive in place, a recent survey of health care providers indicates that 20% or less of all patients have completed one, which is the primary reason I chose this topic for this week’s blog.

Do not confuse a Medical Directive with a “Living Will”, which is more limited in its scope and application.  Living Wills were created by statute in Tennessee, as they were in most states, and in Tennessee it is knowns as the “Right to Natural Death Act”.  Under the Tennessee statute, Living Wills allow you to elect whether or not to withhold food and water via I.V. fluids (“artificial food, water or other nourishment”) and whether or not to make organ donation.  It becomes effective only when your attending physician has determined “. . . there is no reasonable medical expectation of recovery and which, as a medical probability, will result in your death, regardless of the use or discontinuance of medical treatment implemented for the purpose of sustaining life, or the life process, . . .”.  When your physician makes that determination, a Living Will allows you to withhold or withdraw all medical care and be permitted to die naturally, with only the administration of medications or the performance of any medical procedure “deemed necessary to provide you with comfortable care or to alleviate pain”.  Some folks refer to Living Wills as the “Pull the Plug” document, since it is only effective when death is imminent and the primary purpose is to allow you to die naturally.  Living Wills do not provide your physician with any direction regarding your medical care choices when death is not imminent, so while they are helpful they are limited in their scope and application.

Most states now provide Medical Directive forms on-line that, when properly executed (some require witnesses and a notary public, others require just witnesses or just a notary public), will provide you with a form that meets the statutory requirements for a valid Medical Directive.  The majority, if not all, of such forms will also include Living Will provisions, in that they allow you to elect whether or not to withhold food and water via I.V. fluids and whether or not to make organ donation.  Completing the forms and making decisions regarding the available choices or elections can be difficult to do, especially if you have not discussed those choices with either an experienced estate planning/elder law attorney or your primary care physician.  Medical Directives can be improperly completed without such assistance, considering the fact that most directions for medical treatment are based upon erroneous optimistic assumptions about medical care or treatment, such as CPR.  Studies show that 70% of all patients elect to receive CPR, despite the fact that 20% or less of those who receive CPR experience long term survival.  The directions could also conflict with reasonable medical practice and/or the protocol of a given medical facility when, for example, they direct physicians to take any and all steps necessary to keep the patient alive.  For these reasons, you should consult an experienced estate planning/elder law attorney and/or your primary care physician regarding the proper completion of a Medical Directive so it will meet your goals with respect to the medical care you may or may not want.

One further note of interest to those of you who are retired and/or receiving health care coverage through Medicare, the “Care Planning Act of 2015” was introduced in Congress in June of this year, which included provisions to create a new Medicare benefit called “Planning Services”.  This new benefit would allow Medicare recipients who also have an advanced or terminal illness to work with an interdisciplinary team of specialists to help them determine and coordinate their health care wishes and to put those into a Medical Directive.  The bill was referred to the Senate Finance Committee in early June and in late July, Medicare announced plans for a program that would provide reimbursement to “qualified professionals”, i.e. doctors, nurse practitioners and physician assistants, for conversations had with patients about making “End of Life Decisions”.  A final decision on the new Medicare plan is to be made in November and, if approved, it would take effect in January 2016.  Like all proposed plans that involve government spending, securing the funds to pay for the plan is expected to be the biggest hurdle, not to mention the detailed regulations for complying with plan requirements in order to be a covered benefit.  Regardless of the approval or disapproval of this new program, everyone should make plans to discuss End of Life Decisions with their primary care provider and consult an experienced estate planning/elder law attorney for assistance in properly completing a Medical Directive.

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