End of life decisions – a hard but important conversation to have
During an emergency or at the end of life, you may face questions about a loved one’s wishes with regards to medical treatment and not be able answer them if these discussions have not been had. Likewise, you may assume your loved ones know what you would want, but that’s not always true. In one study, people guessed nearly one out of three end-of-life decisions for their loved one incorrectly. Research shows that you are more likely to get the care you want if you have conversations about your future medical treatment and put a plan in place. It may also help your loved ones grieve more easily and feel less burden, guilt, and depression knowing they made decisions that you would have wanted.
Advance care planning involves discussing and preparing for future decisions about your medical care if you become seriously ill or unable to communicate your wishes. Having meaningful conversations with your loved ones is the most important part of advance care planning to ensure that your loved ones know and understand your wishes. Many people also choose to put their preferences in writing by completing legal documents called advance medical directives. Advance medical directives are legal documents that provide instructions for medical care and only go into effect if you cannot communicate your own wishes.
An advance medical directive encompasses many parts including a living will, appointment of an agent (sometimes called a durable power of attorney for health care decisions), and depending on the individual and their personal preferences, Do Not Resuscitate (DNR) provisions or other instructions for care. A living will is a legal document that tells doctors how you want to be treated if you cannot make your own decisions about emergency treatment or even routine treatment if you were, for example, under anesthesia. In a living will, you can say which common medical treatments or care you would want, which ones you would want to avoid, and under which conditions each of your choices apply including end-of-life.
An agent is also appointed in this document to carry out the individuals wishes with regards to their medical care if they are unable to make decision(s) themselves. This is sometimes called a durable power of attorney for health care. Your agent, also known as a representative, surrogate, or proxy, should be familiar with your values and wishes. An agent can be chosen in addition to or instead of a living will. Having a health care agent helps you plan for situations that cannot be foreseen, such as a serious car accident or stroke and ensures that someone familiar with your wishes is able to advocate for you in the event that you are unable to participate in the decision-making yourself.
Think of your advance medical directive as a living document that you review at least once each year and update if a major life event occurs such as retirement, moving out of state, or a significant change in your health or that of an agent. Advance care planning is not just for people who are older or ill. At any age, a medical crisis could leave you unable to communicate your own health care decisions. Planning now for your future health care can help ensure that you get the medical care you want and that someone you trust will be there to make decisions for you in accordance with your wishes.
While younger individuals should have advance medical directives, it is especially important for older individuals who are statistically more likely to experience certain illnesses/diseases such as dementia and Alzheimer’s. Many people do not realize that Alzheimer’s and related dementias are terminal conditions and ultimately result in death. People in the later stages of dementia often lose the ability to do the simplest tasks. If you have dementia, advance care planning can give you a sense of control over an uncertain future and enable you to participate directly in decision-making about your future care. If you are a loved one of someone with dementia, encourage these discussions as early as possible. In the later stages of dementia, you may wish to discuss decisions with other family members, your loved one’s health care provider, or a trusted friend to feel more supported when deciding the types of care and treatments the person would want.
If you do not have an advance medical directive and you are unable to make decisions on your own, a guardianship proceeding through the appropriate court would be required in order to give an individual the authority to make medical decisions on your behalf. The individual appointed may not be the individual that you would have chosen to assist you with decision making.
An advance medical directive is legally recognized but not legally binding. This means that your health care provider and agent will do their best to respect your advance directives, but there may be circumstances in which they cannot follow your wishes exactly. For example, you may be in a complex medical situation where it is unclear what you would want. This is another key reason why having conversations about your preferences is so important. Talking with your loved ones ahead of time may help them better navigate unanticipated issues.
Finally, be sure to make copies of your advance medical directive and store them in a safe place. Give copies to your health care agent and health care providers. Most importantly, keep the conversation going. Continue to talk about your wishes and update your documents after major life changes. Everyone approaches the process differently. Remember to be flexible and take it one step at a time. Start small. For example, try simply talking with your loved ones about what you appreciate and enjoy most about life. Your values, treatment preferences, and even the people you involve in your plan may change over time. The most important part is to start the conversation.
Pets Corner: Ask Teddy
Hook Law: Do you have any suggestions for those who are contemplating adopting a pet?
Teddy: Yes, as a rescue myself, I can tell you that you will never have a more grateful or loving furry friend than one that has been adopted and shown the love, safety, and security that they never had. As there is an overpopulation crisis and shelters are at 100 percent capacity, please consider adopting from one of your local shelters. There are wonderful animals of all breeds, ages, and temperaments available. Here are links to a few local shelters: https://chesapeakehumane.org; https://vbspca.com; https://heritagehumane.org; https://suffolkhumanesociety.org; and https://norfolkspca.com
Rachel H. Snead
757-399-7506 | 252-722-2890
Rachel Snead is an associate attorney with Hook Law practicing primarily in the areas of estate planning, estate and trust administration, guardianship and conservatorships, dispute resolution, and fiduciary litigation. To date, she has litigated and settled over 50 matters. She enjoys the diversity of work that elder law provides, and the challenges presented by litigation just as much as she enjoys helping people with creating their unique estate plan and navigating the complex administration of estates and trusts.
A graduate of the University of Richmond School of Law and Virginia Commonwealth University, Rachel is admitted to the Virginia State Bar. She is also a member of the Virginia Bar Association (VBA), the Hampton Roads Estate Planning Council, the Virginia Academy of Elder Law Attorneys (VAELA), and the Virginia Trial Lawyers Association (VTLA).
In 2022 she became a licensed health and life insurance agent and attended the prestigious National Trial Advocacy College at the University of Virginia School of Law where she received intensive hands-on advocacy training.
She has taught multiple continuing legal education courses including, “Getting Started in Elder Law,” “Virginia Probate from Start to Finish,” and “Guardianships and Assisted Decision-Making in Virginia,” and has facilitated sessions for VAELA including “Medicaid & SSI When a Client Owns a Business.” She has also been published on various platforms including T & E Magazine, WealthManagement.com and Age in Action, a quarterly newsletter published by the Virginia Center on Aging and Virginia Department for Aging and Rehabilitative Services.
- Estate Planning
- Estate & Trust Administration
- Guardianships & Conservatorships
- Litigation & Dispute Resolution