Advance Directives are a Critical Component of Estate Planning

Advance Directives are a Critical Component of Estate Planning

March 31, 2015 marked the tenth anniversary of the death of Terri Schiavo, the 41-year-old who succumbed after her feeding tube was removed as part of a very public legal battle between her husband and parents.

As you may recall, Terri Schiavo was in a coma for nearly 15 years after she suffered cardiac arrest and sustained a brain injury.  Her husband, Michael Schiavo, alleged that his wife would not want to live in her incapacitated state; she had no written instructions in place.

Her parents, on the other hand, suspected that Michael had something to do with Terri’s collapse and argued that she valued life and would have chosen to be sustained.  As you may also recall, the Florida Legislature, then-Gov. Jeb Bush, and then Congress and President George W. Bush all intervened in this legal battle. While no one will ever know Terri’s desires, we can safely assume that she would not have wanted the acrimony that her condition created between her husband and parents.

While the Terri Schiavo story highlights the critical need for clear instructions as to health care when the patient is unable to make those decisions for him or herself, her story is less common compared to the all too common situation of our elderly that have not done the proper planning.

On multiple occasions, I have been engaged to review a well written Will or Trust, just to find that so much of their planning could get undone, because the individual had failed to make their     wishes known for how and who were to care for them in the event they could no longer make their wishes known.

Surprisingly, according to a Pew Research poll highlighted in a recent New York Times article, “only 69 percent of people had discussed end-of-life care with a spouse; just 17 percent, or 40 percent of those over 65, had done so with their children.” Furthermore, only “one-third of Americans had [an advance directive for health care].” An advance directive differs from the more widely known but outdated living will in that it not only allows an individual to make end of life decisions about their health care, it also allows for the nomination of a health care proxy to act on their behalf and to give that proxy detailed instructions on how they are to be cared for.

These statistics are particularly disturbing given that in less than 15 years there will be more than: 72 million Americans over 65; and 10 million Americans over 85 — and roughly half of those over 85 will suffer from Alzheimer’s disease or some other form of dementia.

Failure to create and discuss these documents with a qualified attorney can also lead to costly litigation that could be avoided if these documents are in place. The need for a court and attorneys to determine guardianship over an individual that has lost capacity could be either completely eliminated or expedited. Moreover, the document gives the individual say-so over how they would like to be cared for in different situations where long-term care or memory care may become necessary.

Given that we are all likely to suffer from some form of disability during our lifetimes it is critical that we think through these issues carefully, and that the legal documents necessary to effectuate our desires are done so in consult with an attorney who understands the practicalities and consequences of each decision made – so that our desires will be carried out even if we are unable to express them ourselves.

Summary

Advance Directives provide protection:

• for individuals while they are still alive, allowing them to make important decisions about their care even after losing capacity;
• to help avoid litigation and family acrimony that can quickly develop in even the closest-knit families;
• from unnecessary pain and suffering or the early termination of life when that is not the individual’s choice.

Call to Action

Schedule an appointment with my office at (678)835.7210 or jordan@alfordburkhart.com to discuss Advance Directives and how they fit into your estate plan.