The Right Time for an Advance Directive is Now

The following was written by Sheehey attorney Daphne Moritz, who specializes in estate planning and elder law, and works out of Sheehey’s Woodstock office.

At the time I am writing this, we are well into the COVID-19 pandemic, which means we have been self-isolating, social distancing, quarantining, masking, gloving, and listening to a daily barrage consisting of frontline heroes, large scale catastrophes, uplifting stories, and problematic politics. Some people face emotional and financial struggles. Others seem to cope day-to- day well enough. Still others worry about their own health and that of their vulnerable family members. Most of us live daily with an acute awareness of our unseen virus nemesis, taking the measures we can and doing our best to stave off the worst.

My friend and I were chatting recently during this critical time. She has long sought changes to her Will, and so we were finally finding the time to get to it. She has named guardians in her Will for her children if she should die while they are still minors. But what happens if she is alive, yet incapacitated, while they are minors? Yes, this is rare, but perhaps a bit more “in our faces” during these COVID-19 days. That possibility prompted me to have a difficult, but important, discussion with her during which we agreed she needed an Advance Directive for Health Care.

For the one-third of Americans who have executed Advance Directives for Health Care, also known as Health Care Powers of Attorney, we have probably not made any changes related to coronavirus. But there is much to consider: Would you want to be on a ventilator? Would you accept oxygen treatment? If organs like kidneys begin to fail, would you want dialysis? Would you be willing to try a novel vaccine or a drug treatment? Whether you answer affirmatively or not, does your Health Care Agent have a clue as to how you feel about this? Have you talked with him or her at all about it? These are challenging conversations during good times, let alone when there is a pandemic. Many of us avoid the topic of mortality, but now that it is in the majority of news stories and the new practice of social distancing can mean the difference between sickness and health, it is time to gain a new comfort level with at least preparing for end-of-life matters so our loved ones are not faced with making the toughest decisions of their lives. Ignoring death and dying will not make them go away, so isn’t it better to exercise the option to take control of end-of-life decisions so our intentions are clear?

An Advance Directive allows you to name someone, called your “agent” or “health care agent,” who can speak for you if you cannot speak for yourself due to illness, sedation, or in some cases, intubation. An Agent is often a spouse, child, other relative, or friend. With your Advance Directive, you can express your treatment wishes regarding artificial nutrition and hydration, breathing machines, dialysis, and whether you prefer to have a Do Not Resuscitate order. Your current life and health circumstances and your age can play a big role in determining your future treatment choices.

For much of the country, the coronavirus has shined its nightmarish spotlight on death in a jarring way. It is not that we are unaware that someday we all will die, but in the United States we do not generally get a daily reminder that it can be any of us, anytime. Yet, precisely because we do know that we will all face our deaths at some point, it seems best that those closest to us know how we feel about our end of life concerns. A little thinking now, a little planning before a crisis, goes a long way if and when a crisis befalls us. It can quell anxiety about future unknowns, and it allows those closest to us to have a map into our most important life care decisions.

Now that you are at home, possibly with more time on your hands, it is a good time to get to things that have not been tended to. Planning for your future is a very worthwhile item for your “to do” list.

If you have any questions on preparing your Advance Directive or other estate planning questions, our attorneys are here to help.  Contact us at [email protected].