In my last post I wrote about a pro bono project providing advanced directives and other end-of-life planning documents to the elderly and threatened to write more on advanced directives in my next post. I did not realize at the time that the next post would be ten days later! Mid-term grades are in and the first draft of my thesis is done, so now I can focus a bit more on blog posts I hope.
I was reminded of the topic by a post in the Paralegal Network Linkedin discussion group entitled “Avoid these estate planning mistakes.” The post shared an article from Lawyers.com, “Five Common Estate-Planning Mistakes After Having a Baby.” That post has now been followed by one entitled, “5 Common Estate-Planning Mistakes When Getting Divorced.” I’ll let you read those posts for those mistakes as I want to talk about another one.
I have no data to back this up, but I have the distinct impression that the biggest mistake legal professionals make in end-of-life planning is that they do not do it for themselves. Sure many if not most attorneys have a will and maybe a trust. Documents that take care of the assets. But as I discuss extensively in The Empowered Paralegal:Working with the Elder Client, (1) disposition of assets is only one part of end-of-life planning and problably not the most important one, and (2) executing a document is only part of the answer.
I am going to assume you know what an advanced health care directive is. If not, check out Working with the Elder Client which I like to think does a good job of explaining them. It also explains that different perspectives that people have with regard to AHCDs in particular and aging & death in general. What I want to focus on here is the point that they are not solely elder law client documents and that the documents themselves are not enough.
Many legal professionals, lawyers and paralegals, think of AHCDs only in terms of their clients, especially elder clients. I know you are already overworked, but I am going to give you something more to do – something essential to you and your family. Sit down and think about what you want to happen if you were in Karen Ann Quinlan (at age 21) or Terry Shiavo (at agae 27). Who would get to make the decisions. Remember an AHCD allows you to make many of them in advance. Sure, you can simply appoint someone to make the decisions for you or allow the person designated by state statute (who may be the soon-to-be ex-spouse you are in the process of divorcing,) but is that fair to them (I realize that you are not likely to be real concerned about being fair to the soon-to-be ex-spouse.) Then execute an AHCD.
I know we tend to think the need for an AHCD will only occur to our clients, but it can and does happen to us. I know from recent personal experience just how suddenly a need for AHCD can arise. Keep in mind that your family and other loved ones will likely be in shock from the fact that an AHCD is needed. Only we can avoid the additional stress and distress occasioned by putting them in the position of having to make decisions that they have to make only because you wouldn’t and didn’t make them for yourself.
Which brings me to the second point. Talk about this stuff with your family and other loved ones. I know it is difficult. We don’t even want to think about it, much less talk about it. This is especially true in modern American culture. (As I discuss in Working thatwas not always the case.) It is especially important to talk to those who may have to make decisions, but also those who will have to accept those decisions. Let them know what you would want to have happen. Find out what they would like to have happen (both to you and to them.) Be aware that since people are reluctant to talk about these topic you may have an entirely mistaken impression that those who would have to make decisions know what you would want. Worse, parents, siblings, or children who may have to make joint decisions may have vastly different impressions of what you would want and vastly different impressions of ought to be done. Do you really want your family arguing over whether you wanted to be cremated or buried, a church funeral or not, a wake or not, etc?
Our children are all over the age of 18. I advised each as they reached the age of 18 to execute an AHCD. Even more important in my opinion even before the age of 18 my wife and I began discussing with them what we want to happened in the final stages of our lifes and at our deaths. Without a doubt they considered it morbid and did not want to think about it. At times we had to leave the discussion for a future date. But I am now confident that when the time comes they will be drawn together as they struggle through the stages of grief instead of being torn apart by disputes over what should be done.