I’m cheating a little bit this morning and writing a blog on a question I didn’t actually receive from someone, but I ran across an excellent article in the Wall Street Journal discussing the uses and limitations of living wills that I felt like needed to be shared with you. Let’s first make it clear that a living will, advance health-care directive, and durable power of attorney for health-care decisions all refer to the same document. These are the three common names for what I’ll call the “living will” today, but they all refer to a document that nominates an agent to make health-care decisions on your behalf in the event you are unable to make them for yourself.
As the WSJ article discusses, living wills are actually severely limited. Most living wills, including the one authorized Mississippi Code Section 41-41-209, simply nominate a person to make health-care decisions on your behalf in the event you are unable to make those decisions for yourself, but they do very little to advise your agent what your desires are should he or she ever have to make health-care decisions for you. Unfortunately, the statutory living wills such as the one in the Mississippi Code are often left too vague or only give direction where the outcomes are absolute. Very rarely do doctors simply say that a person has no chance of recovery after a stroke or some other severely debilitating condition. More often than not a doctor will instead give you “the chances,” such as advising a daughter that her father only has a “10-20% chance of having full brain function” should he ever wake up from a coma.
As an estate planner, I’ve found that while my clients trust their designated health-care agent to make the best decisions he or she can for them, they want more ability to advise their agent what he or she should consider when making those decisions. Again, the statutory living wills don’t provide for that flexibility so it’s necessary for clients and their planners to come up with other methods to make sure a designated health-care agent is prepared to make crucial health-care decisions. In order to help my clients better understand the issues and facilitate those important discussions, I recommend the Consumer’s Toolkit for Health Care Advance Planning provided by the American Bar Association. When used with the Toolkit, a living will becomes the document that clients want it be by providing their designated agent not only the authority to act on their behalf, but also the direction to make the decisions that their loved ones would have made if they were able to act for themselves.