April 16 is National Health Care Decisions Day

April 16 is National Health Care Decisions Day

This year marks twenty years since the United States Supreme Court decided Cruzan v. Director, Missouri Department of Health and Congress passed the Patient Self-Determination Act of 1990.  Despite the passage of time, the number of people in the United States with some type of written directive remains low.  Various surveys give estimates of how many people have signed a type of directive; according to a survey done in 2005 by Pew Research Center for People and the Press, 29% of those surveyed had a living will, but a significantly larger number of those surveyed had participated in a conversation about end-of-life wishes. [See http://people-press.org/report/266/strong-public-support-for-right-to-die.]  A story last month noted that the number of adults in the United States with advance directives has really remained static over the past few years. [5 years after Schiavo, few make end-of-life plans, http://www.washingtonpost.com/wp-dyn/content/article/2010/03/30/AR2010033000109.html.] Another study, reported in the April 1 issue of the New England Journal of Medicine, with a higher percentage of the individuals with advance directives, concluded positively about the continued use and importance of advance directives. [Summary available at http://content.nejm.org/cgi/content/short/362/13/1211.]

Despite the advantages of having an advance directive, why don't more people make them? The reasons are numerous and varied.  Some were discussed in The New Old Age blog in the New York Times last April [http://newoldage.blogs.nytimes.com/2009/04/20/why-do-we-avoid-advance-directives/.]

It is important that people know about their ability to make their wishes known and the tools available to them to have those wishes honored.  Although every few years a case will capture the headlines and serve as a catalyst for thinking and discussion, elder law attorneys should and frequently do discuss advance directives as part of their clients' planning process.

April 16, 2010 has been designated as National Health Care Decisions Day.  National Health Care Decisions Day (NHCDD), in its third year, is an effort by organizations from the local to the national level to educate individuals about the laws governing health care decision-making and the ability to make an advance directive.  According to the NHCDD website, there are a number of opportunities to get involved in National Health Care Decisions Day and more information about National Health Care Decisions Day is available from the website, www.nationalhealthcaredecisionsday.org.

An advance directive is only a part of the process for one to make one's wishes known about end-of-life care.  A conversation with the family and health care providers is a critical part of the process.  A discussion with the family or the health care provider may not be easy, so the American Bar Association Commission on Law and Aging has developed and placed on its website a consumer's tool kit that covers a variety of topics including thinking about one's wishes and having discussions with family members. [See http://new.abanet.org/aging/Pages/HealthDecisions.aspx.]

An attorney plays an important role in the client's understanding of the applicable state laws, how to make a health care directive, and what a directive can or cannot do.  The ABA Commission on Law and Aging offers a number of helpful resources for attorneys about advance directives, including a tool kit for attorneys on Health Care Advance Planning. Further information is available on the Commission's website, at http://new.abanet.org/aging/Pages/HealthDecisions.aspx.