new-jersey-living-wills

An example of a quickly signed weak living will.

You’ve gone to the hospital, maybe for a routine procedure. As you are admitted, a nurse asks you if you have a living will. You answer, “no”, and she hands you a paper and asks if you would like to fill one out now. By law, the hospital has to ask you. Thoughts rush through your mind. “Is my condition really that serious that I have to have a living will?” “I really don’t want to be thinking about this now.” But, you check off a few things anyway and sign it.

Your procedure at the hospital goes off without a hitch. Even better, you think, because you now have a living will. You meant to do this for years, and now it is done. Not bad. You put it away with your important papers, hoping it never has to see the light of day again.“Not bad”, you say? I say it is very bad.

Many living wills are too general.

Aside from the fact that you did not have a chance to carefully consider what you chose, the form may be very general. Indeed the very doctors at the hospital may not like the form that the hospital gives because it is too general. Most importantly, you put it away and did not talk about it with the decision makers you named in the document. Chances are, if they have to make a decision about your healthcare when you cannot, they will not know what your wishes would be.

Is this a lawyer blowing things out of proportion? I assure you I am not. In November of 2009, I began a process of discussing advance directives with physicians. I had always heard that doctors do not like living wills, and, as this was probably the only document I prepare as a lawyer and never get to see how it is used in a practical sense, I wanted to explore these with them. A year after my presentation to the Hunterdon County Medical Society, that November, I had the honor of becoming the Hunterdon County Bar Association’s President. As President, I established a committee of lawyers and doctors to discuss advance directives and find a way to meet the criticism of the physicians and to create a more practical document, one which was useful for families.

General living wills are often unclear and vague.

We met for a year. It became very clear that these general statements, “I don’t want any extraordinary care” and “No heroic measures” were unclear in the practical setting of a hospital. Simply put, a physician has no idea if the treatment he or she wants to administer to you, right here, right now, with this condition, is something which you think is extraordinary or heroic. You need to be a little more specific.

In response, we have heard, “Well, that may be so, but my (name a family member) will know what to do.” Really?

Most families are not sure what to do.

Some years ago, a nurse at a New Jersey hospital interviewed these family decision makers, post decision making, for her doctorate thesis. It was found that the vast majority were suffering from guilt and remorse over the decision they made years ago. They just weren’t sure if they had ended their mothers’ or fathers’ lives prematurely.

The problem is that we may say, “my family will know what to do”, but you haven’t talked to them. They don’t know what you would want. The dying process is complicated. Things that you think will be clear will not be. For example, imagine this: you are in a hospital bed, unable to communicate about your health care wishes. Your kids are in the hallway, worried and upset. Your physician approaches and says, “I recommend that we put your mother on a breathing machine for about a week and see what happens. If it doesn’t work, we can remove her. “Do you deny this care and end it all now, or wait a week and see what happens? If your children deny the care now, unsure if this is what you would want, they will always wonder what would have happened if they waited a week. If they wait a week, and it does not work, they will always feel guilt about you being on the machine for a week, and the pain removal must have caused.

Take action today.

What to do? Talk to your kids, or whomever you have designated as your decision maker.

The joint committee of doctors and lawyers? We found that it really didn’t matter much what you wrote in your living will. Practically speaking, your reality will probably be much different than you thought when you were filling it out. What really matters more than the document is that your decision makers understand you, what your wishes would be, what your values are. This takes a conversation, albeit unpleasant.

Like most things in life, it’s not the document; it’s what’s behind it. Do you care enough?

 

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THE INFORMATION CONTAINED HEREIN IS MERELY AN EDUCATIONAL SERVICE TO PROVIDE BASIC, GENERAL INFORMATION AND IS NOT LEGAL ADVICE OF ANY SORT. FURTHER, BY EXPLORING THIS INFORMATION, YOU UNDERSTAND AND AGREE THAT NO ATTORNEY-CLIENT RELATIONSHIP IS BEING FORMED.  IF YOU NEED LEGAL COUNSEL, PLEASE CONTACT OUR OFFICE OR AN ATTORNEY OF YOUR CHOOSING, OR CALL YOUR LOCAL COUNTY BAR ASSOCIATION FOR A REFERRAL.