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Part 1 of Anne’s post focused on the 5 strategies of an effective healthcare directive. This week’s post shares insights regarding the selection of healthcare agent(s).

Well-written healthcare directives require more than checking boxes on a perfunctory form. Clear treatment guidelines can provide meaningful support to decision-makers, reduce the risk of family conflict, and ease the emotional stress and guilt that healthcare agents often experience. Preparing loved ones through open family conversation is also essential.

Yet undoubtedly, the most critical decision when preparing for end-of-life healthcare decisions lies in the choice of healthcare agents.  

Nurse Pushing Man In Wheelchair - iStockUnfortunately, too few agents are chosen based on their ability or willingness to serve in this vital role. Rather, healthcare agents are most often chosen based on convention. The spouse is assumed to be the decision-maker. However, honoring the wishes of the patient can be diametrically opposed to a husband’s desire to extend his wife’s life, or vice versa. In some cases, the spouse might succumb to emotional distress and request “all possible care” in spite of the patient’s expressed wishes otherwise. Absent the spouse, the eldest son is often selected. In still other cases, an aging parent might assume her children will agree upon her care. However, for most siblings, unanimous agreement on life or death decisions for a parent can be difficult to achieve.

Speaking on behalf of clients everywhere, I emphatically encourage attorneys and other trusted advisors to proactively coach your clients regarding their selection of healthcare agents.

Your clients will be empowered to make the wisest selection of healthcare agents and/or to serve as an agent when you teach them:

  1. The responsibilities of the healthcare agent. When the depth and breadth of this role is understood, your clients will be better able to choose healthcare agents wisely. To serve effectively, a healthcare agent needs to:
  • Fully understand the care preferences of the principle. The agent should press for clarity that goes beyond glib responses such as “no heroic measures.” Exploring various possible scenarios can help the principle to express his or her wishes with greater clarity and detail.
  • Become familiar with the principle’s health concerns. This can provide critical information that might impact future decision-making.
  • Anticipate family dynamics. Most agents will navigate through challenging family dynamics. Proactively recognizing the likely conflict with and between emotionally distraught loved ones is wise preparation.
  • Understand the legal boundaries and authority of this role. If conflict with medical professionals or loved ones arises, an agent must know and confidently utilize the legal authority of the healthcare agent role.
  1. The characteristics of a well-chosen agent. A well-chosen agent will be willing to zealously advocate for the principle’s end-of-life preferences. Necessary traits include:
  • Strength of character. Passive or highly emotional loved ones might be ill equipped to represent the patient’s wishes.
  • The agent must advocate for the principle’s preferences above his own emotional needs.
  • Most agents will confront the emotional peril of family dynamics and/or the persuasion of medical staff to pursue unwanted treatment. Emotional stamina is imperative.
  • The agent needs to be available and accessible to respond in a crisis.
  1. How to prepare to serve as a healthcare agent. For those of your clients who have already been appointed as the healthcare agent for a loved one, you can offer suggestions on how best to prepare for the role as well as provide questions to ask the principle. For example:
  • Will other agents be involved?
  • Who has final decision-making authority?
  • How do I secure online access to and/or a paper copy of the healthcare directive document?
  • What exactly do you mean when you say …?

Optimally, the agent should encourage the principle to gather loved ones and agents together for a family meeting where end-of-life decisions are openly discussed.

As trusted advisors, you can influence your client’s selection of healthcare agent. Even further, you can promote proactive family communication by offering to facilitate a meeting with adult children and the chosen healthcare agent(s). Hint: With complex or blended families, incorporating the expertise of a social worker or family therapist might be helpful.

What a privilege. With your guidance and assistance in crafting an effective healthcare directive, your clients—and their loved ones—will have peace of mind.

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Will II - iStockIt will be the 8th anniversary of James Brown’s death on Christmas of this year and yet his estate still has not been administered according to his wishes in his Will. As we have witnessed with other celebrity estates, Mr. Brown’s estate is locked up in disputes between family members contesting the Will, fiduciaries’ decisions, and surprisingly, the South Carolina government which seized control of the assets.

The primary beneficiary of Mr. Brown’s estate was to be a trust that would provide scholarships for needy children in both South Carolina and Georgia. However, the trust has not been established and no scholarships have been awarded. Back in 2008, the South Carolina attorney general attempted to partially disregard Mr. Brown’s wishes under his Will and proposed a settlement to the contesting family members, which would have redirected a portion of the charitable bequest to those individuals. The settlement was ultimately thrown out by the Supreme Court of South Carolina. Fiduciaries of the estate have been removed and replaced and even Mr. Brown’s body still remains in a temporary resting place. And again, eight years later, his wishes continue to be unfulfilled.

For a more in depth report on the history of this dispute and its current status, see the New York Times article, Downbeat Legacy for James Brown, Godfather of Soul: A Will in Dispute (December 13, 2014).

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Blank Notepad & Cup of Coffee - iStockAs trusted advisors, attorneys and financial advisors, you are uniquely poised to coach individuals and families on the merits of preparing thoughtfully for end-of-life decisions. Most likely, posing questions regarding a client’s financial assets and estate intentions is part of your everyday practice.

But ask yourself: Are you comfortable engaging clients in deep, probing conversation in order to inspire a well-written healthcare directive?

In fact, this conversation doesn’t come naturally for many advisors. An estate attorney once shared with me, “My tax expertise really helps my clients preserve wealth. However, I’m uncomfortable talking about relationship issues. Family dynamics can be very messy.”

Families often devote tremendous energy to develop an estate plan that protects financial assets. However, statistics indicate that healthcare directives typically do not receive comparable attention.

Yet, an effective healthcare directive can be instrumental in preserving family relationships.  

And you can play a vital role…In a crisis, raw emotions amplify complex family dynamics. By guiding your clients to prepare thoughtfully for future healthcare decisions, you can minimize conflict and foster family unity through the end-of-life journey and loss of a loved one.

Although the planning conversations might be awkward or even tense at times, your relationship with your clients will most certainly grow deeper. Demonstrating your care for you client’s family members will be remembered. And here’s an incredible benefit for your practice—you might pick up the next generation as new clients.

Anne and her Mother CarolEven while I was wrestling with my own mortality in preparing a will a few years ago, our family was struggling through the final years of my mother’s twenty-year journey of living with Alzheimer’s disease. The Alzheimer’s began in her late fifties. In every other way, throughout the journey, Mom was strong and healthy. Over dinner one evening, my father, my brother and I discussed possible healthcare decisions for Mom.

In that moment, we experienced the challenges families face when healthcare instructions are vague or altogether missing for a loved one with a life-limiting illness. We debated whether Mom would want to stay alive, even as Alzheimer’s progressed and she no longer recognized us and could no longer communicate. And, we didn’t agree.

Like our family, most families won’t agree on end-of-life healthcare treatment choices for a loved one.  

If a family disintegrates while battling over treatment choices for a loved one, settling the estate will likely become infinitely more complex and subject to emotionally driven conflict. Additionally, if financial assets are decimated by costly care a loved one didn’t want, survivors might be left without an inheritance as intended.

As a trusted advisor, you can protect your client’s interests while also fostering family unity through a well-crafted healthcare directive, which in turn, can safeguard the intent of an estate plan.

Employing the 5 Strategies of an Effective Healthcare Directive will ensure that your client’s wishes are honored. For a healthcare directive to be effective, it must be:

  1. Thoughtfully written. Well-written healthcare directives require more than checking boxes on a perfunctory form. Ensure your client includes:
    • Clear treatment guidelines that express goals for future care
    • Statements of values and beliefs that will support decision-makers
    • Wisely chosen healthcare agents
    • Needs for emotional and spiritual care
  2. Clearly communicated. Encourage your client to gather loved ones and the chosen healthcare agent(s) for a family meeting to openly discuss end-of-life wishes. Optimally, everyone in the family can share preferences for his or her own future care. Furthermore, suggest your client schedules time with her physician to convey end-of-life treatment preferences.
  3. Securely stored. Suggest secure online storage options, such as Everplans or Docubank. The list of online providers offering this service is rapidly expanding. Paper copies might be necessary in some situations, both for older clients who resist online storage, and for those traveling frequently who might not have Internet access in a crisis.
  4. Readily accessible. Remind your client that healthcare agents need to have access credentials for any online storage and/or have paper copies of the executed document immediately available. Unlike the will, healthcare directives should not be stored in the safety deposit box or solely in the care of the attorney.
  5. Strongly advocated. Guiding your client to choose decision-makers who will zealously advocate for his preferences is crucial.Note: Next week’s post offers insights to assist you in this coaching opportunity.

Consider the privilege. By guiding your client to thoughtfully write and communicate end-of-life preferences, you can shape a client’s legacy and ensure family unity through multiple generations.

What a noble and beautiful service to offer your clients.

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