There are many forms of Health Care Directives online – different styles and formats. It is often emphasized that, more than filling out the form, it’s the conversations it can spark that are really impactful. That is of course an excellent point, but I think simply getting people to fill out the form is pretty good on its own.
Say you have a client who is incredibly reticent to face up to their own mortality. They have pretty severe health problems (a chronic condition, perhaps), no children and their cat would have their power of attorney if possible. (They are, by the way, your favorite client.)
You have other clients who have three grown children, a sizable estate, are in their early sixties and starting to see their health deteriorate. Insulin shots, knee and back pain, no fun at all. They don’t have a will; their estate planning policy is “not dying.” (direct quote)
Logically, these people absolutely need a Health Care Directive, right? They’re free online, for goodness’ sake. You just fill them out and there you go!
But they just don’t have one.
As attorneys, we are counselors as well as advisors and advocates. A widely held definition of the word counselor is “one who gives advice.” But digging a little deeper into the word’s meaning, especially as it differentiates from “advisor”, counselor has much more of a supportive core to it – you don’t just advise, you remain involved. You see it through and help someone to the other side of an obstacle, issue or fear. This aspect of our profession gets overshadowed by lawyer jokes and popular bile, sure, but it is in fact a crucial reason why many of us became lawyers in the first place. We want to help with the hard stuff.
I would argue that a health care directive (HCD) presents a concrete opportunity to hold our clients’ hand as they prepare for eventualities many people do not wish to imagine let alone plan for.
Why am I so enamored with the HCD? Because it is a self-sufficient, easy to find resource that, on its own, helps minimize a significant amount of stress and turmoil within an already stressful context: healthcare. No one is going to argue with you on that. Both clients I mentioned above wax poetic on the irritating intricacies of our ridiculous healthcare business, and I can join them. It’s fun to complain! And then you say, “how about that healthcare directive then?” and they get it.
You print some out. You send it to them or sit there with them and fill it out together. You meet again after they’ve had a chance to review and reflect and make sure it’s the way they want it.
It is now much easier to continue or broach the subject of other aspects of estate planning (POA, wills, trusts, etc.). Your clients have gotten into the pool of mortality at the shallow end, so to speak, and can now stomach the idea of planning for when they’re not here anymore. Now they feel a little bit braver about having those impactful conversations with loved ones.
I find it helpful to break estate planning down this way. I most often offer the HCD free of charge and use the time spent to foster a relationship with the client. For many people, estate planning is pretty terrifying. I find this hard to remember sometimes because estate planning makes me feel safe and protected (and no, not just because it helps make me some money). But by remembering our roles as counselors, we remember our own humanity and this makes us better at connecting and communicating with our clients. It makes us better lawyers.
Now…do you have a health care directive?
For more on Health Care Directives, please see:
Health Care Directive Questions
A case for Health Care Directives