Everyday People Estate Planning

I think a lot about advance health care directives (AHCD’s) because in addition to being an estate planning attorney, I used to be a medical social worker (my first career). As a medical social worker, I saw AHCD’s in use – which has given me some important insights to draw upon now that I am an attorney doing estate planning (and helping people draft AHCD’s as a part of their estate plans).

Here is the biggest thing that I learned when I was a health care professional: Keep it simple. I see so many AHCD’s with an inordinate amount of complexity. I see that there is actually a lot of confusion on the part of many professionals who help people make their AHCD’s. There is this persistent idea among “the experts” that when doing your AHCD you should give very specific directions to your health care agent, the person you named to make decisions for you. This idea is understandable, as we don't want the agent to just try to figure things out for themselves, as they speak on your behalf.

But the problem is that when a person makes an AHCD - let's say they do so when they are in reasonably good health - that person does not have a crystal ball, they don't know what the actual circumstances will look like when they get sick. Another issue is that most people that are making an AHCD are not medical professionals - and they lack understanding of diagnoses and disorders, and their treatments, to say nothing of treatments that may come to exist after the AHCD is written and before the person gets sick.

There are a couple of things to do then in order to have your wishes followed. One, you want to give general, not specific, directions as to what your wishes are for when you are sick. (When I say “when you are sick”, I mean when you are really sick, perhaps close to death, and no longer able to speak to yourself - this is generally the time when the AHCD is used.) Two, you want to have conversations with your health care agents. You want to have a primary agent listed, and you also ideally have backup agents listed as well. You want to talk to these people and let them know what your wishes are. (My YouTube channel (accessible through my website, ktolaw.com) has a video on AHCD’s, in which I give suggestions for general, concise directions for an AHCD.)

This is not a “one-and-done” conversation. It's important to revisit this over time. If you have an electronic calendar, you could mark every spring that you revisit this conversation with your health care agent, for example. This might sound tedious, but actually, these conversations are really important and valuable for everyone. In many respects, these conversations are “the good stuff”. These are the big conversations that are uncomfortable to get started, but that are very intimate - and ideally both parties are left with a sense of connection, and gratitude for that connection. Of course, this conversation with your health care agent becomes doubly important when there are changes in your health status. As your health declines (and as your priorities may perhaps shift), it is especially important to communicate your wishes to your health care agent.

So, that is my advice for AHCD's: Don't be too specific. Don't have a lot of prohibitions or inflexible, very particular directions. Let your health care agent respond to the circumstances as they arise. Put general directions in your AHCD, and talk - and keep talking - to your health care agent over time. My last bit of advice is to take a deep breath and trust that the doctors and nurses will have your best interests in mind when the time comes, and that your agent will do their very best to see that your wishes are carried out. (Over many years working in health care, what continually struck me was the attention and compassion that healthcare professionals brought to those who were facing life-limiting illness, and also the conscientiousness that health care agents brought to their role.)