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A Call To Action - Make Your Advanced Directives

I hope you and your loved ones remain healthy and in good spirits during this difficult time. Most of all, my heart goes out to all who have an ailing loved one or who have lost people they love. Please don’t hesitate to reach out to me should you need any information or assistance during this difficult time.

COVID-19 has tested all of us. But it is perhaps our stalwart health professionals - doctors, nurses, EMS personnel and others fighting in the trenches of this viral war – who bear the brunt of this pandemic. They carry for us the burden of tending to the sick and dying, working under incredible mental, physical and emotional strain. They face fatigue and frustration, not least of which is the shortage of crucial medical equipment and protective gear. And they face the constant and very immediate threat of infection. Some, barely into their first year of residency, have even succumbed.

Doctors now shoulder our emotional burdens too: a recent article from the New York Times poignantly writes about how doctors have also become the go-between for families whose critically ill loved ones have chosen not to go on ventilators and other forms of life support. Unable to visit their sick loved one, and with time running out, families are left with saying their final goodbyes through FaceTime on a doctor’s smartphone held up close to her fading patient.

I share this article with you not to be alarmist; it vividly illustrates our present reality. It is a wake-up call for us to do the responsible thing i.e. put our affairs in order and plan for contingencies as ably as we can. Hopefully, neither you nor anyone you care for will find yourselves in the terrible situations highlighted in the Times article. But it’s entirely possible (and I suspect common) that many infected persons have a high risk of being temporarily incapacitated when sickened by COVID-19. One may not die from the virus, but one can still be ill enough to be both physical and mentally unable to make medical decisions for oneself.

Which is why I urge you to create your Advanced Directive.

What are Advanced Directives? Collectively, they are legal documents that govern your medical care when you are incapacitated and unable to make decisions relating to such care. The two most common advanced directives are the Living Will and the Health Care Proxy. The former has specific instructions that your medical providers must adhere to; your spouse or partner or relatives can’t make medical decisions for you or instruct your doctors to do anything contrary to your wishes in your Living Will.

Alternatively, you can have a Health Care Proxy document, whereby a designated person (e.g. spouse, partner, relative, friend) or persons (there can be more than a single proxy) makes all decisions pertaining to your health care when you are unable to do so. You can also include in this document your detailed wishes (as you would in a Living Will), if you feel that this would give guidance to your proxy or proxies.

You can find more detailed information on Advanced Directives here, including the typical medical procedures or medications found commonly in directives such as Living Wills. Note that Living Wills have no pre-determined set form in New York state. A Health Care Proxy template for New York residents can be found here. All Advanced Directives need to be properly witnessed by two adults who are not your proxy(s). You can draw up these documents without legal advice but you also take the risk that certain words or phrases you use may lack clarity in the eyes of the law (and even medical providers).

A word of caution: when it comes to listing instructions/preferences in your Living Will (or those you include in our Health Care Proxy document to guide your proxy), it’s vital that you seek information and explanations from your own doctor first. Advanced Directives relate to medical life-saving or life-prolonging efforts and you should understand what they entail and their impact. Medical care can be a very gray area in some situations. For example, you may be incapacitated for a few days if you have a small stroke, which renders you temporarily unable to think or communicate clearly. This may not, in the eyes of your doctors, be considered a fatal situation where life support becomes an issue, but you are still considered incapacitated (in which case your advanced directives must be adhered to if medical decision must be made for you – e.g. tube-feeding, catheter, medication). Understand that I am not giving medical advice here; my purpose is to stress the all-important need for you to have thorough conversations with your medical provider(s) before you create and sign a Living Will or other advanced directive. In short, talk to your doctor before you make an Advanced Directive.

Daunted? Don’t Be. Creating an Advanced Directive can be empowering.

So many of us continue to adhere to the recommended (and highly sensible) precautions of social distancing, wearing masks and washing/sanitizing our hands when we do come into contact with others. Even so, I find myself feeling a little helpless at times, given the sobering news on infection and fatality rates around the world, and particularly in our beloved city. But I also think that this is a time when we can be good to one another. I’m sure you and your family – like many in our city – have done what you can to contribute to our larger community during this difficult time. (e.g. contributing food and funds to charities that support the poor and sick). If so, you’re likely to feel more empowered, less helpless in the current situation. Hope and a sense of empowerment are as crucial as pragmatism and generosity of spirit.

I hope you give deep and careful consideration to setting up an Advanced Directive. In all my years as an estate planning attorney for families, it’s rarely questions of money and inheritance that cause the most pain. It is when a person has little time to say goodbye, or is incapacitated, and has left no Advanced Directive, that the emotional pain is even worse for her loved ones. In such situations, families are left to make life-or-death or palliative care decisions for the ailing person. Even when they generally or instinctively know what their loved one would have decided for themselves as regards life-sustaining efforts, they never know for certain unless that person has set out her wishes explicitly in a document or in a conversation with a trusted relative or friend. Doctors and medical experts can, of course, provide indispensable guidance. But in the absence of an Advanced Directive, it’s the patient’s next-of-kin who ultimately has to make the difficult decisions. So unless you are explicit about your intentions, no one – not even your spouse or closest sibling or friend – can know with absolute certainty what you would have preferred in a situation where you are incapacitated or otherwise unable to communicate your wishes as regards your health care. I often feel that to leave this decision to them is perhaps a kind of personal abdication, a terrible burden placed on loved ones who are already fighting fear and sorrow. That said, when you get your Advanced Directive properly crafted and executed, it creates lasting peace-of-mind-and-heart for you and your loved ones. Something all of us need during these challenging times.

Stay strong, stay safe, and be good to one another.

Rob

P.S. I am currently waiving my fees for a 90-minute consultation. If you have questions about Advanced Directives or other estate planning issues, simply reply to this email or call me (646.681.1977) to set up a phone (or video) conversation.

Nothing in this content is intended to be legal or medical advice. Please consult your lawyer and doctor before making any decisions relating to your health and well-being. Copyright 2020 The Law Firm of Robert J. Maher, P.C..

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