YOUNGER LAW NEWS: LIVING WILLS, HEALTH CARE PROXIES AND PRIVACY

The first time I prepared a document dealing with someone’s wishes about what he wanted to be done when he was at the end of his life was in the early 1980's.  There were no statutes setting forth rules and regulations about how to deal with the procedures to be followed.  What guidance we had was from the seminal New Jersey case of Karen Ann Quinlan and other subsequent cases from various parts of the country.  They provided broad concepts but not a set of rules about who had the right to make decisions for whom.  It was not until 1991 that the "New Jersey Advance Directives for Health Care Act" was passed, setting up statutory guidelines for end-of-life situations. Over the years, the documents I prepare to help clients deal with end-of-life decisions have evolved, as the law has changed and as current thinking about health care and death and dying have also changed. 

In this piece, I will not try explain the law.  You can look them up by doing an internet search of the official statutory reference: N.J.S.A. 26:2H-53 or “New Jersey Advance Directives.”  Instead, I will discuss the importance of selecting the right person and having frank discussions about what you want when the end is near.  What follows applies whether you are the one who needs to put together a plan of action or whether it a parent or other loved one who needs to do so.

There are two times when it is important to take action and put documents into place.  One is when you are doing an estate plan, whether it your first one, or when you are making changes to an existing plan because things have become different.  The second is when illness strikes (either you or someone close to you), and you realize that you don’t have a plan in place.  I have written many times about how “crisis planning” is dangerous.  If you wait until you are ill, it may be too late to execute the necessary documents to deal with your wishes.

There are four essential questions to be answered when you go into the first step of the planning process:

1.   What is your prognosis?  Are you making a plan while you are healthy or because you have received bad news from your doctor?  If you are healthy, you will be dealing to a certain extent in the abstract when you talk about a living will.  However, you should not lose sight of the fact that anyone can become ill and need someone to make decisions for them on a temporary basis.  If you are appointing health care representatives because your health is in serious decline, you may not have much time to make a decision.

2.  What are your fears about what is to come?  This, too, depends on why you are having documents prepared for you.  Some people fear death and will benefit from spiritual counseling.  Others, particularly those who have lived a long and full life, are more sanguine about death and are ready to face what lies ahead.  You don’t have to have been the recipient of bad news to have the same fears or to be ready when the time comes.

3.  What are your goals when you learn that time is running out?  You may want to get your affairs in order.  You may have good-byes to say. You may just not ready to give up and want to fight.  Or, you may simply be preparing for the future with no immediate crisis looming.

4.  What trade-offs are you willing to accept?  Are you willing to endure the pain and discomfort of fighting a terminal illness?  If so, for how long?  Or are you ready to accept the inevitable and direct that you be given medication only to treat your pain and keep you comfortable?

What you decide to do should not be a unilateral decision. You should discuss your wishes with the person to whom you trust to make decisions for you if you cannot do so yourself.  Depending on the circumstances, you may want to consult with others first.  If you have a serious or terminal illness, you should consider discussing your situation with your physician.  Regardless of the state of your help, you may benefit from religious counseling.  Eventually, however, you will have to let your Representative know what you want and make sure that he or she is up to the task.  Finally, you should discuss your wishes with the attorney who is drafting your documents so that he/she knows what language to use, general or specific.  

Next month, I will discuss how you should make a choice of your health care representative.  I recommend that you read the third article in this newsletter.  It gives an example of what can happen if documents are not properly prepared, or are not prepared at all.  Next month’s article will show how to avoid such a situation.  I will also deal with the HIPAA privacy law, something that is much misunderstood and not uniformly applied by health care practitioners.

 

 

 

 

 

Contact us

Questions? Contact us at Michael C. Rudolph, Esq. P.A.

Michael C. Rudolph, Esq. P.A.
85 Newark-Pompton Turnpike | Riverdale , NJ 07457
Phone: (973) 208-2900 ext. 4
http://www.michaelrudolph.com