This interview took place on May 14, 2010 in Lake Arrowhead, CA.

SO:

The Congressional healthcare bill brought the topic of the advance directive to the forefront of the national debate in 2009. As is often the case, though, the political debate confused rather than clarified the issue. To get a better understanding of what this important legal instrument is and how it works, I’m sitting down with John Würm, an attorney from Lake Arrowhead California.

Hi John. Thanks for speaking with me.

JW:

Hi. How are you today?

SO:

I’m doing well. Let’s jump right into it. What is an Advance Directive? Why is it important?

JW:

An advance directive is important because, if you’re in a situation where you cannot tell the doctor what kind of healthcare you would like, the doctor isn’t going to know.

It is also important that you designate someone, whom you trust and someone in whom you have confidence to make these decisions for you. If you become ill or you’re in an accident and you can’t tell the doctor what kind of care you would like to receive, the doctor is not going to know who to listen to.

Perhaps, your relative with the loudest voice will be the one that the doctor listens to, or the person who complains the most. It’s important to designate a person in whom you have confidence to make those decisions.

It is also important to put down in writing ahead of time the kind of healthcare you would like to receive. Perhaps, you don’t want heroic measures taken, or perhaps you do.

These are very important factors that you aught to think about ahead of time, and make sure that it is taken down correctly, so that there are not any problems in a very stressful situation.

SO:

So, the laws pertaining to health directives, are they uniform across the states? If not, what forms do we use here in California?

JW:

Advance directives may not be uniform across different states or even different countries. If a person is going to be residing in the state of California for a period of time, I would recommend that they execute an advance directive from a California Attorney.

It cannot be guaranteed that an advance directive from another state or even another country would be honored by a doctor in California, just as it cannot be guaranteed that an advance directive prepared in California would be honored in another state or another country.

SO:

That’s really important to know. So, in this document, this advance directive, what are the key things that people are deciding there? Can you outline a few of the more important parts of the advance directive?

JW:

Two key decisions a person must make in preparing an advance directive are who are the persons who will be making the decisions regarding your healthcare.

Usually I recommend that the person who is making the advance directive assign a primary and then two secondary persons to make the decisions. I also do not recommend that you give co-authority, or make two persons responsible for the decision. I recommend that you use a hierarchy.

If you make two persons responsible for the decision, in essence co-deciders, if one person isn’t present then the doctor may not honor the decision of the other one.

The most important factor, I think, in choosing a person to make the decision is make sure that it is someone you can trust, and someone that will be level-headed and cool and perhaps has some knowledge of healthcare.

Also you should try to have that person be close to you – be in a location close to you. If a person is 3,000 miles away, it is hard to make a good decision without being able to observe you and, perhaps, talk in person to the doctor.

The second key decision that you must make is what kind of healthcare you would desire. Many people do not desire to be kept alive at any cost and do not desire that heroic measures be taken. Other people, they want that. They want to get that last dying gasp.

But with an advanced directive you can decide ahead of time what kind of care you would want, and you may designate that, perhaps, you would just want to make sure that you would not be in pain. This way your wishes should be followed.

SO:

Great. OK. So, I’ve got my advance directives set up. I’ve designated the people that I want to carry out those measures. I’ve made a decision about what kind of care I want, so how can I be sure that my requests are being carried out? What if my doctor wants to something different that what I wanted?

JW:

After the advance directive is prepared, you should give all of the persons, to whom you’ve given the authority, a copy of your advance directive. I also recommend that you give a copy to your primary-care doctor, or, perhaps if you have more than one doctor providing care, each of those doctors should have a copy. And then also keep a copy in your important records.

In my experience, if an advance directive is properly prepared, I have never heard of a doctor refusing to carry out what is in the advance directive. However, I have heard of situations where there is no advance directive where the family gives the doctor conflicting instructions on what type of care to provide the person. As you can imagine that is a very, very bad situation – not only for the person who is receiving the care, but for the entire family as well.

SO:

I can imagine. OK. So, I’ve read that advance directives should be part of a broader end-of-life plan. Do you normally counsel your clients to include advance directives in their end-of-life plan? What else should be part of that plan?

JW:

I do a lot of estate planning for my clients, and an advance directive is an important part of every estate plan. In addition to advance directives, I also recommend that my clients have a power-of-attorney for asset management if they should become unable to manage their own financial affairs.

I tell my clients, it may be important to you what happens to your assets after you die, but it’s more important who decides your healthcare and what happens to your assets if you are unable to make those decisions while you are alive.

In terms of the other two estate planning devices that are commonly used, one is a will and the other is a trust. Both essentially do the same thing. They specify where your assets should go after you die. The difference between a will and a trust is that your estate is administered through the courts with a will, and your trust is administered by a trustee that you select privately without having to go to court.

The main advantage for a trust, in most cases, is that the cost of administration is far less than if a estate is administered through a probate court.

SO:

Great. Thank you. Ok. So, this really goes back to the question, why should we care about advance directives. What are the risks? Say, my time comes. I’ve been lax in my preparation, and now I’m unable to communicate my wishes, what’s the worst that can happen?

JW:

The worst case scenario, if a person does not have an advance directive, is that somebody that they don’t trust telling a doctor what type of health care they are going to receive when the person is unable to communicate to the doctor. I hate to say it, but there are people who would take advantage of the situation, and I would hate to see someone be the victim of an unscrupulous friend or relative or interloper and have their assets taken away or even worse.

Advance directives are very simple and very inexpensive to obtain from almost any attorney. Most often, if a person is in a hospital or nursing home, advance directives can be obtained through the administration of either of those facilities.

SO:

That really brings things into focus. I really want to thank you for granting us this interview today, John.

JW:

Alright, thank you. It’s been a pleasure talking to you.