Another frequent question we get about Organ Donation is:

Aren't I too old to donate organs?

Many clients are joking when they ask but the misconception that their is an age limit for donation leads many who can and would be donors not to take the steps to volunteer. 

While there are diseases such as cancer and AIDS that prevent donation, there is no age limit on donors.  As doctors we have worked with have explained, if you have a critical organ failing that is difficult to match, the healthy organ of an 80 year old that is a decent match is going to be much better than what you have.  Matches at that age and above are not uncommon and save lives.  So don't write off your organs yet!

If you have more questions about organ donation, or are interesting in making your wishes regarding donation known and included in your disability and estate plan, contact us for a free 1/2 hour consultation.  We can be reached at (206) 459-1908 or info@phinneyestatelaw.com.

One issue that we encourage all clients to address is their Advanced Health Care Directive is whether or not they are willing to be an organ or tissue donor.   As a result we get a lot of questions and wanted to try to answer some of the most common here including:

How Needed is Organ Donation?

As of July 2012 there are currently 114,712 Patients Waiting for life saving organs.  Of those, 64,292 are Multicultural Patients who can be especially difficult to match and 1,737 are Pediatric Patients.  Each day, 13 of them will die because the organs they need have not been donated. Every 16 minutes, a new name will be added to that waiting list.

The good news is that 28,535 Organ Transplants Performed in 2011 from 14,144 Organ Donors.  In addition, more than 46,000 corneas were transplanted in 2011.

Long wait lists result from low rates of opt in to the donation process, the special circumstances required to allow organ harvesting, and the difficulting in finding safe matches for some patients. 

If you have more questions about organ donation, or are interesting in making your wishes regarding donation known and included in your disability and estate plan, contact us for a free 1/2 hour consultation.  We can be reached at (206) 459-1908 or info@phinneyestatelaw.com.

In our last post we gave recommendations about treatment choices that are helpful to add to an advanced health care directive.  But working with families in the middle of health care emergencies we know that those are not the only choices agents get asked to make.  So when working with clients on their advanced health care directives I encourage them to give guidance as well such as:

o   I want my doctor to give me enough medicine to relieve my pain, even if that means that I will be drowsy or sleep more than I would otherwise.

o   I want my doctor to give me enough medicine to relieve my pain, but I want my pain medication reduced frequently to allow me moments of lucidity.

o   I want my Health Care Agent to explore alternative medicine treatments.

o   I want to be kept fresh and clean at all times.

o   I want to have personal care like shaving, nail clipping, hair brushing, and teeth brushing as long as they do not cause me pain or discomfort.

o   I want to have people with me when possible.  The visitors that would be most meaningful to me are: ___________________________________________________________________________________

o   I want to have my hand held and to be talked to when possible, even if I don’t seem to respond to the voice or touch of others.

o   I also want to have religious readings and well-loved poems read aloud when I am near death, such as: __________________________________________________________________________________

o   If I am alone and awake I would like to have music or books on tape playing, such as: __________________________________________________________________________________

o   I want to have pictures of my loved ones in my room.

o   I want to have flowers or live plants in my room.

o   I want to have a hospice care and other palliative care provided as soon as appropriate..

o   I want to be treated at home if possible.

o   I want to have the members of my faith community told that I am sick and asked to pray for me and visit me.

o   I want to have others by my side praying for me when possible.

o   I do not want to have politicians or clergy involved in my health care choices

o   I do not was clergy visiting me.

We have had clients select a host of mixtures of these instructions.  Often selecting them can feel strange, especially if the client is currently healthy.  It can feel controlling or demanding.  But the reality is that we have never had an agent tell us they had too much information about what they do.  What makes the job hard and encourages conflict is the agent and others involved not knowing what the right thing to do is for that specific patient.

If you would like help drafting an Advanced Health Care Directive that is right for you, contact us for a free 1/2 hour consultation at (206) 459-1908 or info@phinneyestatelaw.com

In previous posts we have discussed how to select and document your choice of who should serve as your Health Care Agent if you should loose the ability to provided informed consent for your own health care choices.  That is without a doubt the most important single step you can take in make a plan for your future possible medical disability but there are other steps that can and should be taken as well and one of the most important is drafting an Advanced Health Care Directive.

An Advanced Health Care Directive, as the name suggested, provides guidance to your Health Care Agent and Doctors about what kind of health care choices you would want made for you in difference circumstances.  These documents are often referred to as "living wills."   In Washington the statute that allows for the creation of Advance Health Care Directives is RCW 70.122.  The statute requires that the directive be executed while the agent is still capable of make their own health care choices and be witnessed by two witnesses who are not close family members or health care providers.  The statute also places restrictions on the application of Advanced Health Care Directives when patients are pregnant.

Many hospitals have free Advanced Health Care Directives that address a few limited forms of life support but much more detailed directives can be done with an attorney and the more detailed guidance is usually much more helpful to families.  An attorney can also make sure that the witness rules are followed as forms provided in hospitals are often witnessed by inappropriate witnesses that can render them invalid. An attorney can also ensure that added language is put in the directive to make it effective in other states that have different execution requirements.

If you would like to schedule an appointment to develop an advanced health care directive contact us for a free 1/2 hour consultation at (206) 459-1908 or info@phinneyestatelaw.com.

Previous posts have explained that the only requirements of a health care agent are that they be at least 18 years old and not be your doctor or an employee of your health care provider unless they are also a member of your immediate family.  But there are a lot of people who pass that test who would not make good health care agents.  When picking your agent, I would recommend you look for someone with the following qualities, which we find make the best agents from working with family during actual medical crisis. Keep in mind that the importance of some of these factors may depend on whether your top priority is having your wishes honored or having your family feel best about the process.

1. Would be willing to serve in this role and speak on your behalf?
2. Would be able to act on your wishes and separate his/her own feelings from yours?
3. Lives close by or could travel to be at your side if needed? (If your agent is someone who lives far enough away that it would take them a while to reach your treatment facility, you may want to select a temporary agent to serve until your agent can reach you.)
4. Knows you well and understands what’s important to you?
5. Will talk with you now about sensitive issues and will listen to your wishes?
6. Will likely be available long into the future?
7. Would be able to sensitively handle conflicting opinions between family members and friends?
8. Can be an advocate in the face of an unresponsive doctor or institution?

Can't think of anyone in your life who is a perfect fit for all these factors?  Few clients can, but this list can help you create a meaningful pro and con list as you consider candidates.  The goal is to find the best agent you can.

To schedule a consultation to talk about the specific people in your life and who might be your best agent, please contact us at info@phinneyestatelaw.com or call us at (206) 459-1908.

Does my Health Care Agent need to be a member of my family?

Absolutely no!  While family members are the default decision makes for individual who do not make a plan for health care planning before they become disabled, the statute in no way favors family for the appointment of health care agents in their plan. 

While it is most common in our practice to see client appointing spouses, registered domestic partners, adult children, and siblings we also frequently see clients appointing friends, unmarried partners, and even professional fiduciaries to fill these roles.

Reasons to appoint non-family members vary.  Some clients do not have family.  Others have family but they are distant from them either geographically or emotionally.  They may have create families of choice that are different from their legal family but who are their true support system.  Some just want to spare their family the burden of making end of life choices. Whatever the reason, an appointment of non-family members is always only allowed and frequently appropriate. 

We frequently encourage clients to look beyond family, particularly when the only possible family members are parents.  Making the choice to end treatment for your adult child is difficult for a parent even when it is obvious to others that it is the choice the child would make if they could choose.  It may be fairer to that parent to place someone else in the position of making that ultimate choice.

If you would like to discuss options for your health care planning, schedule a consultation at 206-459-1908 or info@phinneyestatelaw.com.

NPR is doing a great series on families dealing with the care of elderly family members.  While the series focuses on a variety of legal, financial, and emotional issues, I was pleased to see their advice that families make their first step being setting up Durable Powers of Attorney with the help of legal counsel.  I do find that the lack of those documents creates the most fundamental problems for families trying to deal with both long term planning and emerging crisis.

Yes.  You can select as large a group of agents as you choose.  Some clients choose to select all of their adult children to serve as their health care agents. 

Many attorneys actively discourage their clients from selecting more than one agent at a time because it has the potential to make decision-making in crisis more difficult.  If there is more than one agent serving at any given time than there is always the possibility that they may disagree and/or give conflicting instructions. 

There are typically two solutions of to this problem.  One is to pick an odd number of agents and allow a majority of agents in agreement to overrule a minority that disagrees.  This allows for a relatively streamlined way for disputes to be settled.  The alternative is to require consensus among all the agents for all decisions.  The advantage of requiring consensus among agents is that it requires families to come to a joint decision and take joint responsibility for those decisions.  Otherwise there is a risk that one agent for example, one your adult children may simply be out-voted about the decision to try a treatment method and may harbor resentment against the other agents or even blame them, instead of your health crisis, for your death. 

Such resentments can, of course, still come up if you choose to make just one child an agent in the first place but, in our experience, they tend to be magnified if the minority opinion child has been given the agent role in the first place just to find that they are, in fact, powerless to make actual decisions.  Resentments can also be magnified where one of the agents has always felt a bit ganged up on by the others such as a black sheep sibling.  And it is almost always the child who is most geographically distant and/or emotionally distant from the parent who is the least likely to face the reality of a terminal illness or hopeless medical crisis.  They have simply had less time and information to come to terms with the situation and have had the least time to say their good byes or to achieve the sort of emotional closeness that they had hoped would eventually come with time. 

The disadvantage of requiring consensus is that it may take a while for the agents to agree among themselves or mediate their disagreement.  During that time you may either not be getting treatment that the majority of your agents think you should get or be getting treatment that the majority think should have been suspended.  In the end, it is possible that time, nature, and/or science may make the decisions for you while your family fights it out.  In addition, if everyone must agree then everyone needs to be in the loop and probably at the treatment facility.  For people whose agents have busy careers, competing family demands, or live far away that can become somewhat of a logistical nightmare.

We usually recommend that if consensus is required that it be the consensus of the agents present at the treatment facility in order to preserve some flexibility for the family.  But that may result in someone getting left out of the loop and out of the decision-making.  To a certain degree the decision about number of agents and methods of decision making may come down to how you balance in your own mind your desire to preserve family harmony and have everyone feel empowered in the process versus your desire to have your wishes respected or the best decisions made. 

In our experience, it works best if you can select one agent to serve at a time.  Other close family members or friends should, if possible, know who the selected agent is, and, if possible, have that choice communicated to them in as loving and affirming a way as possible.  (For example by explaining that the choice was not based on a lack of trust or love for the other possible agents but selected was based on who was able to come to the most doctors appointments with you now so that they would be ready in a crisis or who has the most medical experience.) 

Ideally all close family members should be given copies of your health directive as well so that they know what choice you have made and have an opportunity to process them and ask questions if necessary.  You may also want to talk to your selected agent and communicate any desires you might have about how they should informally consult your other family members and even your willingness to have decision-making slowed down to allow people to come to consensus where possible if that is your priority.  If you do decide that having more than one agent is what is best for your family, and frequently it is, you need to take extra care to draft an advance health care directive that will provide guidance.  Relying on one person’s best judgment is hard enough.  Relying on two people’s best judgment gets even more tricky.

If you want assistance drafting a Durable Power of Attorney for Health Care that best meets your needs, contact us for a free consultation at info@phinneyestatelaw.com or tel. 206-459-1908.

While there are many special considerations in drafting advance health care directives for people over 65, the language of your durable power of attorney for health care will likely look very similar to one drafted for someone younger. 

The main differences may be the considerations of the age and health of your agents.  Often people select spouses, siblings or close friends of their own age to serves as their agent.  That may still be the best selection for your first and perhaps second choices. 

However, it is important to remember that as we age the chances of our developing dementia or suffering a stroke that limits our ability to update our plans statistically increases.  That means that it may become difficult, if not impossible, to update your planning documents as agents in your own age group develop similar health issues. 

If you have selected a parent or other older friend or relative, it may be time to make a replacement. It may also be time to add a second back up agent and to try to select some younger that you.  It may be time to consider adult children, nieces or nephews, or children of close friends. 

As with any selection of agents you should make sure that they are going to be willing to have a frank conversation with you about your wishes and will be available to serve in the role.  You should also begin to more regularly review your documents so that you can make corrections if any of your selected agents pass away or develop health conditions that would limit their ability to serve. 

It may also be time to start thinking about being more open with your agents about your health than you might have been in the past.  If you are primarily relying on adult children to serve as your agent, you may need to start sharing health information that you would otherwise choose to keep private.  Without solid information, too often children have an unrealistically rosy view of their parent’s health and that may lead them to make less than ideal choices if a crisis strikes and they have been out of loop.