At the end of each month, we like to review elder law news and developments. For January’s review, we found a couple of insightful pieces about advance directives particularly interesting. There are other tidbits, too.
Living Wills: Not as Helpful as We Think?
Two articles raised basically the same issue: Living Wills are not all that helpful. A Living Will describes the care a person wants (or doesn’t want) if he or she can’t communicate medical decisions. It’s a type of “Advance Directive,” as are other documents that address a person’s future medical care. Included are health care powers of attorney and “DNRs.”
For decades, attorneys, health-care professionals, and others have urged all clients to create documents that spell out their end-of-life wishes – the earlier the better. Some experts say we should stop. The effort, they say, doesn’t help. People do not get care that is consistent with their documents.
A Boston Doctor Weighs In
Boston physician Daniela J. Lamas, writing her opinion in the New York Times, points out that many people change their minds when faced with actual death. In living wills, people often state that they want no extraordinary measures taken to prolong their lives. Such measures can include common procedures such as intubation or use of a ventilator. Lamas tells the story of a patient who had a clear advance directive that refused a breathing tube. Because she was unable to communicate, staff relied on her husband to decide. He OK’d the procedure.
The doctor expected the patient to be livid, but “[w]hen she was finally awake and off the breathing tube . . . . She said she would choose to be intubated again, and even undergo a tracheotomy, if it meant more time with her family. She had changed her mind. And if the doctors and nurses treating her had made decisions based only on the preferences that she had articulated years ago, we never would have known.”
Lamas proposes less emphasis on documents and specific procedures and more reliance on the “health care proxy” — the (hopefully) trusted person appointed to make health care decisions. She also says end-of-life discussions should focus on people who are seriously ill—not everyone. Responding letters thoughtfully share personal views and stories.
Kaiser Health Mostly Agrees
A Kaiser Health News piece dovetails with Dr. Lamas’ views and says changes are already happening. “Advance care planning has evolved . . . the focus today is on conversations between patients and clinicians about patients’ goals and values, not about completing documents, said Dr. Rebecca Sudore, a professor of geriatrics and director of the Innovation and Implementation Center in Aging and Palliative Care at the University of California-San Francisco.”
The piece offers links for patients and families: Prepare for Your Care, the Conversation Project, Respecting Choices, and Caring Conversations; and videos at ACP Decisions.
Arizona’s Effort at Odds?
As you may know, Arizona has a registry for advance directives and has recently renewed the effort to get documents into the registry. Perhaps that effort is misguided. Registration means medical professionals can access documents online. It emphasizes documentation over conversation and may create a barrier to continual re-evaluation. (Why should I review that again? I registered!) Easily accessible outdated documents undermine the whole point.
Take stock: Do you have a living will? When did you last update it? Have you talked to your agent about what it says? Does having the document make it less likely that you have that talk? Name an agent, but reconsider whether that living will serving you well.
January’s Review—The Remainder
Dead Celebrities: David Bowie’s estate sold his entire songwriting catalog to Warner Music for $250 million. 
The IRS and Prince’s estate have agreed on a date-of-death value of $156.4 million (up from the estate’s $82.3 million and the IRS’s $163.2 million); meanwhile, the Prince estate refused to grant rights to a Sinead O’Connor documentary for Nothing Compares 2 U; she wasn’t super fond of him. 
Lawyers for Robert Indiana’s estate agreed to pay back $2 million of their $8M+ fees.
Estate Planning: What planning to do now? Some ideas. 
Ex spouses can inherit your assets, even if you don’t want them to; take steps to ensure they don’t. 
Sharing lessons to be learned, a financial planner writes about his own parents’ estates. 
A recent case illustrates how not to characterize a charitable deduction for estate tax purposes. 
Some tips on how to file an income tax return for a deceased filer.
Aging & Wellness: Dementia cases are expected to triple by 2050. 
Failing to dress for the weather may be a warning sign, so is confusion about money. 
Exercise can help, even if you have symptoms. 
So can cataract surgery.
There’s always more, but that seems like enough for January’s review. Stay well.
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