Tom Brokaw and his daughter, Jennifer, at the TEDx Stanford conference (from YouTube)
Tom Brokaw and his daughter Jennifer appeared at the TEDx Stanford conference, speaking on the subject of end-of-life health care options. Brokaw began the dialogue, framed as a conversation between father and daughter, by asking the audience to ponder the reason to have such conversations. He shocked the audience by admitting that “unfortunately, I don’t know a lot about my living will. In fact, I’m not even sure where it is at this point.”
During the talk, Jennifer asked her father what his wishes would be if he were ever in a state where he could not communicate them to a doctor. According to Brokaw, “I’m a realist, and so I never want there to be any heroic efforts to keep me alive if I am confined, am immobile, or cannot communicate with the ones I love.”
It sounds as though Brokaw has pretty specific desires if he ever were incapacitated and couldn’t speak for himself. What if a family member disagreed with his wishes, and no one could locate his documents? In this situation, there is no guarantee his wishes would be met, and the decision making during the stressful time could cause turmoil in his family.
Incapacity planning documents only do what you want them to do if you know they exist and can locate them when you or medical professionals needs them.
Unfortunately, most Americans don’t have a Living Will (which is typically part of more comprehensive document called an Advance Medical Directive, which also includes a Medical Power of Attorney), haven’t made updates, or can’t locate their documents, leaving them ill-prepared for incapacity. In fact, according to Jennifer, “Only 30 percent of people have a living will…and those who do are in a position to leave their families better off emotionally and financially.” This, she argued, represents “a crisis in healthcare” as decisions that few are equipped to deal with are falling into the wrong hands.”
The dialogue between Brokaw and his daughter included a series of anecdotes intended to illustrate different aspects of life and death, emphasizing the need to make your wishes known. Click here to watch the video.
The need for an Advance Medical Directive was further emphasized for the Brokaw family in 2013, when Tom was diagnosed with multiple myeloma, a cancer affecting blood cells in the bone marrow. Luckily, on December 21, 2014, he announced that his cancer is in full remission.
Why don’t people plan for Incapacity?
Reasons people don’t plan for incapacity often range from a natural tendency to procrastinate, the preconception that it is a costly and complex process, and sometimes even the superstitious feeling that if you don’t ask for it, it won’t occur. Another common belief is that if we become unable to make decisions for ourselves, our family will decide what is best for us. All of these reasons can lead to difficult and emotionally-charged situations if you or a loved one becomes incapacitated, which can easily be avoided with proper Incapacity Planning.
The Brokaw father-daughter dialogue raises a few important questions:
- Have you discussed your wishes with your family? Have you talked about what you want (and don’t want) with those you love? To begin the Incapacity Planning process, you should sit down with your family members to openly discuss your needs and the roles of loved ones in assuring those needs are met. For more details on how to broach this conversation with a loved one, please read our blog post on the topic. Regardless of when this important conversation occurs, it is important to work with an experienced elder law attorney to ensure that your Incapacity Planning documents are in place.
- Have you planned for incapacity? Below are the incapacity planning documents you should have in place:
- Advance Medical Directive: An Advance Medical Directive communicates your desires to your physicians and family members regarding all forms of medical treatment, and may be used to instruct your physician to withhold or implement specific life-prolonging procedures if at any time you are diagnosed as having a terminal condition and your physicians have concluded that there is no chance of recovery. Without this document, families could have serious disagreements, or someone who doesn’t share the individual’s values may be making the decisions. Our firm includes within this document a proprietary Long-Term Care Directive, which discusses numerous issues with regard to long-term care should you ever find yourself in need of long-term care at home, or in assisted living, or in a nursing home.
- Financial Power of Attorney: When you give someone Financial Power of Attorney, you are giving that person the ability to pay your bills and manage all your financial and legal affairs. The document typically goes into effect immediately after it is signed, but it intended to be used by your Agent only if and when needed. Failing to sign this document can result in a costly legal battle for your family in which a court will select a guardian and conservator. Having a Financial Power of Attorney in place avoids the “nightmare of living probate” — the time consuming, expensive, and publicly embarrassing process whereby someone has to go to court to have you declared mentally or physically incompetent and then one or more persons need to be appointed to serve as your legal guardian and/or conservator, which subjects your entire estate to the nightmare of probate for the rest of your life.
- Revocable Living Trust: A Revocable Living Trust (RLT) generally provides for the creator of the trust (and, if applicable, the creator’s spouse) to have full use of the trust income and principal for life. A major benefit of an RLT is avoiding the costly and public probate process, appointed conservatorship,and lifetime probate.
- Does your living will still reflect your wishes? There are many reasons why you should regularly update your Advance Medical Directive: Has your relationship with your family changed? Is your agent still able and willing to act on your behalf? Has your health changed? Have your beliefs changed? Have you moved? Read our blog post for more details on reasons you should update your estate planning documents.
- Do you know where your living will is? If you or medical professionals cannot find your Advance Directive (or Living Will), the burden is on your loved ones to decide whether or not to begin or continue life support. Therefore, in order for your documents to be easily accessible when needed, they should be registered with an online registry service that can immediately fax or email the documents to any desired destination. At the Farr Law Firm, we offer a service called DocuBank to ensure that that the documents you complete will be there when you need them most, such as if you are hospitalized
How does DocuBank work?
DocuBank is an electronic storage and access service for Advance Medical Directives and other important legal documents. DocuBank stores your Advance Medical Directive, HIPAA Release, allergies, emergency contacts, and any other legal documents and medical information you wish to store, so they are available whenever you need them.
- DocuBank can transmit your Advance Medical Directive to hospitals within moments, 24 hours a day, 7 days a week, anywhere in the world.
- Your documents are stored safely in DocuBank’s system and available immediately by using a Member Number and PIN Code located on a DocuBank Emergency Card.
- Hospitals can access your documents by placing a toll free call to 1-800-DOCUBANK (to have them faxed) or by clicking the Hospital Button, or using the pop up box on the DocuBank home page (to print them immediately).
- When a hospital contacts DocuBank, they receive a cover page listing your three Emergency Contacts with phone numbers as well as your primary doctor so that they can be reached in an emergency.
Watch this video about DocuBank for more details.
Docubank is a special service we provide to clients of Farr Law Firm, P.C. who set up Advance Medical Directives. Once you are set up, the DocuBank Emergency card arrives within 4-6 weeks of enrollment and comes with alert stickers to be placed on your driver’s license. Once you receive it, be sure to carry your DocuBank Emergency Card in your wallet at all times. Hope you come by and take advantage of this great service soon!
If you have not done Incapacity Planning, Estate Planning, or Long-Term Care Planning, or if you have a loved one who is nearing the need for long-term care or already receiving long-term care, please contact Farr Law Firm, P.C. as soon as possible. To begin your Estate Planning or to update your existing documents, please contact us.
Fairfax Elder Law: 703-691-1888
Fredericksburg Elder Law: 540-479-1435
Rockville Elder Law: 301-519-8041
DC Elder Law: 202-587-2797
About Renee Eder
