A person’s landmark life events might include birth, spiritual dedication, marriage, children’s births, and death. People normally think about most of those events, but few people want to think about final illness and death, much less talk or plan about it. In fact, people probably spend more time researching, discussing, and planning all kinds of less significant things like dinner recipes, home entertainment systems, and mobile devices. This week, we encourage people to consider the benefits to themselves and family members of planning for the final landmark event – dying, death, and disposal of their remains.
The first part of end-of-life planning concerns how someone dies. The three main alternatives in Indiana for such planning are living wills, physician’s orders for scope of treatment (POST), and appointments of healthcare representatives.
Many people have established living wills in Indiana, but estate planning lawyers are increasingly finding that living wills are poor planning devices. A living will does not describe end-of-life circumstances and procedures specifically enough to direct which health care procedures to provide or withhold. More importantly, a living will does not take effect until a doctor certifies in writing that the patient has a terminal injury or illness, death will occur very soon, and healthcare procedures can only slow down the dying process. In actual practice, there is no standard living will certification for doctors to sign and there is overwhelming evidence that doctors almost never sign living will certifications. Thus, living wills are worthless documents that depend on physician certifications that never arrive.
A POST form allows a chronically ill (such as COPD, renal failure, congestive heart failure, Alzheimer’s disease, or Parkinson’s disease) or terminally ill patient, or the patient’s healthcare representative to choose which lifesaving procedures and pain management methods healthcare providers should use if the patient is near death and cannot make or communicate healthcare choices. The doctor and patient or patient representative indicate their agreement of procedures and methods on the POST form, they sign it, and the form has the same importance as any other written physician’s medical order, wherever the patient may be. More POST information about is available online at: http://www.indianapost.org/.
A health care representative provides the best planning alternative for end-of-life healthcare decisions for someone who is not chronically ill or terminally ill. A lawyer can prepare an appointment of healthcare representative as a separate appointment document, or as part of a power of attorney. When the person becomes unable to make healthcare decisions, the health care representative can speak on behalf of the patient and make the person’s healthcare decisions for the person.
We encourage people to think carefully about situations when they are too ill to make or communicate healthcare decisions and consider what their health care representative should know about how to make end-of-life decisions. Some people have strong spiritual convictions about whether doctors should withhold or discontinue life-prolonging procedures, while other people simply want to avoid pain and discomfort during the dying process. A person should consider those matters and communicate their preferences clearly to the lawyer, healthcare representatives, and family members.
A person can make a funeral plan for the second part of planning for death and dying. A plan can be as simple as meeting with a funeral services provider to select burial or cremation services. The person can prepay for those services so that family members do not have to bother with them (our preference for unmarried people), or merely select the services for later purchase (our preference for married couples). A person can also make a funeral planning declaration that spells out all of those details, which a designated person can follow and enforce. As with end-of-life planning, a person should consider whether the person spiritual beliefs should play an important part in how the person’s body is treated after the person’s death. It is also important to communicate those preferences clearly to the person’s lawyer, designated representatives, and family members to avoid misunderstandings and emotional conflicts at the funeral home.
Jeff R. Hawkins and Jennifer J. Hawkins are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers and Jeff is a Fellow of the American College of Trust and Estate Counsel, the American Bar Foundation, and the Indiana Bar Foundation. Both lawyers are admitted to practice law in Indiana, and Jeff Hawkins is admitted to practice law in Illinois. Jeff is also a registered civil mediator and was the 2014-15 President of the Indiana State Bar Association.
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