So your clients complete a Health Care Power of Attorney and maybe a living will in your office. And you think you’re done helping them protect their medical wishes, right? Think again.
People are substituting an HCPOA for conversations about health care wishes.
The researchers studied a group of individuals over 50 who died of cancer from 2000 – 2012, looking at their use of advance directives and the intensity of the care they received.
Specifically, they found that over these 12 years, cancer patients increased their execution of HCPOAs substantially — from 52% to 74%, but the percentage of patients talking with loved ones or doctors about their care preferences was unchanged. The one thing that did rise dramatically: the percentage of patients receiving “all care possible.” It rose from 7% to a whopping 58% — an eight-fold increase.
In addition, as study author Dr. Amol Narang of Johns Hopkins School of Medicine explains, in a communication vacuum, “the proxy may default to ‘all care necessary.’” In other words, some patients have probably received more intensive care than they would have wished.
Another actor needing to make changes: physicians. Study authors and related commentators also point out that there is also a “communication gap” between patients and their physicians. But does this leave you, as an estate planning attorney, off the hook? I would argue not.
At the very least, advise your clients that it is important to discuss their preferences with their named agents. And not just with a named spouse. Also with backup surrogates like adult children.
Give your clients questions or prompts to use in discussing their preferences with agents.
Give your clients’ appointed surrogates some guidance on how to act as an effective health care agent.
If you would like guidance or tools on any of the above suggestions, please email me for materials.