Estate Planning After Proposition 106

 In Estate Planning/Wills, Helpful Articles

The debate over Proposition 106 (Medical aid in dying) has really forced us to face death recently. Most of us read the news coverage about the difficult cases where gravely ill people have had to move to places like Oregon to end their lives.  Apparently, most Colorado voters decided it was time to have some options of our own.  Colorado now has a moderate statute similar to Oregon’s that allows a terminally ill person with less than six months to live to take Physician prescribed medication to end their lives.  Mind you, this is limited to adults who are deemed mentally competent and two doctors have to agree as to the terminal nature of their medical condition.  One also has to have a doctor willing to prescribe such medication and be able to take it.  In my view, it’s about time we had a legal way to deal with death rather than have to wait for it to show up even if we are ready to leave. It’s ironic that Colorado, which has a state full of people who are very good at living life to the fullest by hiking and skiing every mountain, doesn’t have a more comprehensive legal solution since if ever a state needed legislation like this, it would be one where most of the inhabitants who are young are out skiing, biking, climbing and otherwise doing risky activities and the older ones are also doing that and the hold-outs are not immune to death, either.

Moving past the usual arguments pro and con, let’s look at whether Proposition 106 is useful enough that you don’t need a living will or other such documents.  Unfortunately, not.  In my view, you still need something like a living will, or as I recommend, an Advanced Medical Directive (AMD) and Medical Durable Power of Attorney (MDPOA).  Like many attorneys, I prefer these two documents rather than a living will because they are more powerful than a living will since they empower someone you trust to stand in your shoes and make decisions for you.  These documents also cover situations that Prop 106 does not.   If you become terminally ill or get in a very nasty accident, that might cause you to linger more than six months or if you don’t have the capacity to take prescribed medication, or you run into other problems,  you still need these documents.  The MDPOA tells your health care agents, doctors and any other interested party specifically what you want if you can’t speak for yourself on a variety of issues including pain relief, whether you want food and water, specific things you want to fight or don’t want to fight and so on.  The AMD gives your health care agent the power to stand in your shoes and make decisions for you with the assistance of your medical team.  In simple terms, look at these documents as providing guidance to your health care agent as to what to do to help you when you can’t talk for yourself and authority to help whether it’s to help you fight or to find an off-ramp from an impossible disease or injury that you can’t recover from.

So, let’s contrast what happens with or without an AMD and MDPOA. Let’s use Parkinson’s Disease, which is a progressive disorder of the nervous system that begins quite gradually with a tremor or two and stiffness and gradually gets worse. The medications help quite a bit and one often has quite a few years with pretty good quality of life. There’s variation among patients but towards the end stages there can be a loss of the ability to move, choking when swallowing and hallucinations as well as memory loss and problems thinking. Which could mean not being able to move and slowly choking to death. By my definition, that’s torture but without documents, your medical team resuscitates you, they have a feeding tube providing nutrition, someone keeps you clean and eventually you die. With the documents, you can make a number of choices, such as having a do not resuscitate instruction, refusing machines that would control breathing, refusing artificial nourishment and hydration. The point of the documents is that they speak for you when you can’t speak for yourself and so they protect you if you’re unconscious, delirious or have lost cognition. They also are important as guidance to your medical team and relatives as to what you want, so that if you are quite awake and alert, it’s easier for you to insist on these points. Whether you can speak for yourself or not, you still have to plan ahead. A busy ER doesn’t really want to have discussions with you or your agent, they just want to save you. A nursing home just wants to transfer you over to the hospital, they don’t want to delay either. Your friends and family might feel really quite upset to be discussing it when there’s a crisis going on and they fear they are losing you. This means discussing the issues carefully with an attorney, having the right documents, discussing them carefully with your agent and your medical team.

It’s best to deal with these issues when you’re well and able to think carefully think through what you want. You need to consider a variety of factors such as who you trust to act for you and name them as your health care agent (agent) with a back up in case they can’t help.  You need to think through different scenarios and what you would want by way of medical care, painkiller, nutrition, hydration, etc.  It’s good to have an attorney steer through the different possibilities so that you can be specific because your doctors and agent  need more than a basic idea, they need specifics.  It has to be in the form of a legally binding document or whatever medical facility you happen to wind up at will do the standard thing of keeping you alive for as long as possible, no matter what. So you need documents that  provides official standing orders to whatever doctors you wind up with since that is what will protect you and them. That’s critical because no doctor wants to be sued because some relative of yours feels they could have done more to save you.  To provide their best medical advice and care, doctors need protection as much as you do. Meanwhile, it’s a huge favor to your agents to tell them what you want in a crisis rather than make them guess.  Please draft these documents with someone who can run through the various options, give yourself time to think them over and discuss with the people you want as your agents and do it while everyone has the time and is in a good state of mind to deal with these issues.

On the other hand, it’s best to get a move on since many people feel they can comfortably avoid thinking about big issues like this till they are very, very old.  However, you might need these documents at any point in your life.  For example, you might get hit on your bike at the age of 28 and be in and out of consciousness for a week.  Let’s say you’re just banged up but it’s not mortal; still,  your agent needs to work with your doctors for a week to speak for you since you can’t speak for yourself.  However, let’s look at what happens if you ski into a tree, lose consciousness and have brain damage so severe that your doctors do not think you will regain cognitive function. Your agent needs to know if you want them to tell the docs to let you go as soon as possible or give it a week to see if they docs are mistaken?   Another possibility for many of us is that we will live to a ripe old age but we’ll get Dementia or Alzheimers and at some point our doctors can’t discuss our care with us.  What  if you’re not terminal but you’re not yourself and you can’t do all the things you usually want to do?  Well, there’s nothing your agent can do about that but if you get bacteriological pneumonia that can be your off-ramp because you could instruct your agent that you don’t want antibiotics or a respirator.  On the other hand, if you feel that someone with that condition can be perfectly happy in their own way as long as they are physically healthy and are doing well, you could instruct  your agent to allow antibiotics.  But you need to think through and be specific as to conditions that might cause you to want to accept some assistance and live longer or to decline it and let you go. You can also educate your medical team on this since they will likely be making fine-tuned judgment calls based on what they know you want. I have had the honor of being an  agent and can tell you, the kindest and fairest thing you can do for your agent is to be specific since it can be very tough acting for someone else who isn’t able to speak for themselves when you’re upset and tired. It really helps to have discussed these issues when everything was fine.

Many people actually aren’t sure what all the choices are and at best, they go online and find a living will that seems to work. Although I’m quite sure that it’s cheaper and in some ways easier, I don’t recommend it for the same reason I don’t like online wills. They’re cookie cutter and they assume all people are alike. The people who drafted these documents have never met you, they don’t know your concerns, they can’t answer questions and they can’t tailor their documents to help you. So if you want something more useful, find an attorney you can work with  who understands these documents and is willing to spend some time discussing your life and what you want so that the documents reflect who you are and what you need. Frankly, it’s just as much of nightmare if you have inadequate documents or ones that aren’t properly executed as it is if you never got them to begin with so get good ones.  Medical problems and death are inevitable, but thanks to Prop 106, AMDs and MPOAs, we now often have some ability to choose how we live and how we exit.

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