Quite often we represent someone who
does not have close family or friends to make medical decisions on their behalf
if they cannot speak for themselves. We see clients who have neither siblings
nor children who, once informed about the possibility of such, may wish to hire
a professional fiduciary to take on this daunting but crucial responsibility.
This is, in fact, what we arrange for these clients to do. We have very caring and competent
professional fiduciaries prepared to assist in such situations, if and when the
time comes. Usually they also are
appointed conservator and trustee to be able to handle the estate smoothly and
seamlessly.
Clients would much rather pay a
professional, with whom they get to know, to make these types of decisions. That
way the client has an objective decision-maker working for him or her, based upon
the priorities previously discussed prior to any incapacitation.
Sometimes a friend will agree to be the
decision-maker, but they are often about the same age. If the client dies within
five years or so, that may be alright. But after that, what will happen? With
people living longer and families having fewer children, this may become a
growing issue.
A 2006 study reported that 16
percent of people in intensive care units have no designated decision-maker and
no identifiable family who could fill that role. [New York Times, October 24, 2013, Paula Span, “Hiring an
End-of-Life Enforcer.”] Some geriatric social workers are proposing a new type
of professional, the healthcare fiduciary. Drawn primarily from retired social
workers or nurses, clergy, or paralegals, they would be trained and certified to
navigate the health care system. Fiduciaries are often associated with law
firms which specialize in estate planning and/or elder law. They would charge perhaps
close to $100 an hour, much less than an attorney or even most geriatric care
managers would charge.
Fiduciaries are often a desirable
option even for people who have relatives close by. Maybe they do not want to
burden their close friends or family members. Maybe they worry about how to
pick one child over another to make such important decisions. Maybe they are estranged from their relatives.
Maybe they worry that in a crisis, relatives will not be able or willing to
honor their instructions. Maybe it is just too hard to deal with the whole
subject. After all, sadly, despite being told over and over again to prepare
for the future and create advance health care directives, most people still do not.
On another point relative to this
issue, I have read that health care professionals very often encounter the
frustration of a patient declaring that, yes, he or she does have a signed
AHCD, but, no, the patient does not have it with him or her and cannot remember
where the copy is. Sometimes the
original is locked up in the safe deposit box along with the will. [New
York Times, October 17, 2013, Paula Span, “Where’s That Advance Health Care
Directive?”] What if the patient arrives at the ER unconscious or incoherent?
By the time family members are contacted and able to locate and produce the
document, it may very well be too late. I read a funny/sad story about a
67-year-old man who came in to the emergency room with pneumonia. He, too, had
an advance directive, which was stored at his attorney’s office. The Patient Ombudsman at the hospital tried to
get in touch with his lawyer. However the
firm could not fax a copy of the directive, because the man’s lawyer carried it
around with him in a briefcase in his car and he was out taking a deposition. Hours
passed before the lawyer could return the call, and even then he was on the
road and not near a fax machine. I cannot presume to know what possessed that
lawyer to keep originals of anything belonging to a client in his briefcase; but
I do know that would never happen at Cooper-Gordon.
We at Cooper-Gordon LLP do not keep
original documents in our office. They go home in a nice notebook with the
clients. We scan all original documents and provide our clients and any
professional fiduciaries with the scanned copies. We tell the clients to
forward the scanned documents to all named agents, trustees, executors and
conservators. It is always essential
that all primary health care providers, including doctors (cardiologists,
neurologists), hospitals, clinics, medical labs and imaging centers, have
copies of the AHCD. It seems evident that the time
has come to also encourage everyone to carry a thumb drive with these important
documents on them. Even those with little computer knowledge can ask someone
(including the lawyer who has prepared all the documents) to copy the documents
onto the flash drive.
Most of the time, patients who have
advance directives somewhere and do not bring them to the hospital have simply
left them at home. But lawyers’ offices and safe deposit boxes are also popular
locations. All of which are useless if a person cannot direct his own care, or
if family members are at odds, or they are spending time the patient usually
does not have rummaging through drawers and files looking for the paperwork
while the ER staff stands by.
The more copies there are in
circulation, the better the odds that one will materialize at the hospital when
you need it.
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