Is a Will enough?

Estate Planning

Is a Will enough?

My husband is a registered nurse and came home with this story. Patient came into the hospital with cardiac problems and is now intubated. The question for the doctors and nurses now is " Who is empowered to make medical decisions on behalf of the patient?" He was married but is now divorced. He has an adult son who he disinherited in his will. The person at the hospital with him is his neighbor who is the executor of his will and the sole beneficiary to his estate.  Both the neighbor and the son are claiming to have that power.  The hospital held an ethics conference but no decision was made on who should make the medical decisions for this patient. After my husband was done with his story, the legal part of my brain whirred into action and my first question was, "doesn't he have an advanced health care directive?" The answer, of course, was "no".  Then I asked him, "Well, in the absence of an advanced health care directive, who does the hospital look to for approval on medical decisions?" His response was "Next of Kin".  Well, what does that mean? Absent a proxy designation in an advanced health care directive or power of attorney for medical reasons, the decision-making power falls on this list of people in the order written: spouse, children, parents, brothers and sisters, grandparents, aunts and uncles, then first cousins onced removed... Our patient from above did not have a spouse, but he had a son. So, should the son be allowed to make medical decisions on behalf of his father? According to the list above, the answer is "yes". But, once the particular circumstances of this case are examined, the answer isn't so crystal clear. The father disinherited his son and left his entire estate to his neighbor. Assuming that there are no undue influence issues, (and this is a big assumption to make because we do not know the circumstances of this case), it seems like the dad and son did not have much of a relationship.  If that is the case, then the dad probably wouldn't want his son to be the one to make his medical decisions. The patient/father probably thought he had done the right thing. He planned ahead and executed a will. But, as we can see, his minimal planning wasn't enough because although he planned for his death, there was no planning for the inbetween time. We do not like thinking about life like this, but as this story shows, things happen and we should be prepared. Having a will is not enough. In addition to some estate plan, every adult should also have a durable power of attorney for financial decisions AND an advanced health care directive for those medical decisions. In that way, you will be protected all the way through to the end.

2 Replies to “Is a Will enough?”

  1. Very good example. We all know, since the Terry Schiavo case, that a 7 year legal battle might have been avoided by filling out an Advanced Healthcare Directive (aka Living Will). But who thinks about this stuff when they are 27- the age Terry Schiavo was when she suffered a cardiac arrest- causing the hypoxic event that lead to her 15 year vegetative state. Most people are not introduced to Advanced Healthcare Directives until they are admitted into the hospital or go see a lawyer to create a will, but this case has taught us that you are never too young to put your wishs down on paper.
    This is how we can give our loved ones direction on how to make decisions on our behalf. They are not treated as law- just as guidance, and this guidance is greatly appreciated. Families suffer with every decision they make for members who have been incapacitated and cannot speak for themselves. They must wrestle with the ideas that prolonging life might be prolonging suffering, that choosing to withdraw care means deciding to let this person go, quitting on the person who would never give up on you.
    This is the ‘tough stuff.’ Lets give each other a little guidance so the weight of these decisions can be off-set by the idea that we are not deciding to let them go… we are respecting their wishs.

    1. Thanks for your comment, John. The Terry Schiavo case was seminal in bringing Advanced health care directives to the forefront of people’s minds but I’m not sure that many people are learning from that family’s experience. I think incapacity, like death, are difficult subjects for healthy, young people to think about, let alone, plan for. But as you so eloquently put it above, having these documents in place makes it easier for our families to make those tough decisions

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