Advance Directives in the time of corona
June 1, 2020
Covid-19 is some scary stuff. It’s even more so if medical procedures make you nervous. By now we’ve all seen videos of people having long swabs stuck far up their noses, or a tube stuck down their throats, or lying in a hospital bed gasping for air through an oxygen mask.
So if you don’t like thinking about medical traumas … tough noogies. Read this anyway.
The prospect of a looming medical crisis has a lot of people thinking about what kind of treatment they would want, if their circumstances became extreme. And that is where an Advance Health Care Directive comes into play.
It used to be that Alaska (like many other states) had two different documents related to medical care. One was called a Health Care Power of Attorney, and it just said who would be empowered to make medical decisions for you, if you could not make them yourself. And then there was another document, usually called a Living Will, which had some language about not wanting heroic measures if there was little hope of cure.
There were problems with these documents, the first being that people got them confused with other documents. I don't know how many times people told me they had a Power of Attorney (meaning something that can be used to manage their finances if they become incompetent), when actually what they had was a Health Care Power of Attorney. And the Living Will was often confused with a Will (short for Last Will and Testament), or a Revocable Living Trust. Will, Living Will, Living Trust — it’s hard to blame people for getting them conflated.
On top of that, the Living Will was very limited. You were offered one set of circumstances, and one solution, and it was take-it-or-leave-it. There wasn't a whole lot of patient choice available.
In 2004 the Alaska Legislature passed a bill which combined those two documents into one. It was now called an Advance Health Care Directive, and on the first page you would decide who was going to make medical decisions for you, then on the several pages after that you would decide what you wanted in certain situations. Now you could actually choose what would happen if you were in a permanent coma, or were terminal and getting close to the end, or were on a feeding tube or were in extreme pain.
And that was good. At least it was from my point of view, as someone who likes to see people being allowed to make their own decisions for their own lives. I'm kind of a personal autonomy fan. I don’t care as much what you choose, but that you – not somebody else – get to choose.
But there is one big stinking problem with the Health Care Decisions Act. It includes a sample form which can be used to make these decisions. And the sample form is a mess. It has several sections which seem to say one thing, but actually say another.
And it includes huge amounts of detailed instructions. I have learned, through years of painful experience, that nobody reads detailed instructions. Do you doubt me? The rock band Van Halen used to include a rather silly little provision in the set-up instructions for their live shows, requiring that all the brown M&Ms be removed from the bowl backstage. They did it just to see if the stadium people were actually reading the instructions, because if they didn’t, the sound would be off. No brown M&Ms in the bowl meant the promoter had gone carefully through the list, so the sound would be good and the band could relax before the show. Brown M&Ms? Now they had to get out there and make sure the rest of it was set up properly.
And you thought they were just prima donnas, didn’t you?
Anyway, enough about the ‘80s, back to the statutory form. Between the detailed instructions nobody reads, and the confusing language used in the form, it isn’t a very good option. The good news is you don't have to use the flawed statutory version. The statutes are broad enough to allow any reasonable kind of health care directive to be used. So let's talk about a few alternatives.
Five Wishes and other options
Long before Alaska had a Health Care Decisions Act, there was something called the Five Wishes.
This is a nationwide form, which allows you to make a whole bunch of decisions about healthcare. They give them out routinely at Alaska Regional Hospital, among other places. The Five Wishes has a lot of great stuff in it, not just your basic end-of-life medical decisions but a lot of other things. Like, for instance, whether you would like your favorite music played in your hospital room, or want to let someone know you forgive them, or want warm oil massages.
The only problem I have with the Five Wishes is that it is too long for most people. In order to fill it out, and do it properly, you have to really sit down and think through some difficult stuff. And so unfortunately, I regularly see these filled out improperly. But if you have the time and energy to do it right, it is a great option.
There are other options floating around. Providence Hospital has a couple of different forms, although they seem to be inconsistent in giving them out. I tend to disfavor the Providence forms because they are focused on establishing the patient's general philosophy, rather than making specific important decisions. Providence tends to prefer having the doctors make the decisions, not the patients, and I think their forms were designed with that in mind.
But your directive does not even have to be specific to Alaska. People who have a VA advance directive can simply continue using it, if it does what they want. So can people who come from another state and have a directive from that state, as long as it is either signed in front of a notary, or has two disinterested witnesses.
Or you can use the form on my website, which is an improved (and simplified) version of the statutory form. It is at http://www.KirkAlaska.com, and it is free to download or print out.
Being in a critical medical crisis is hard, not only in terms of the medical issues themselves, but also because there is a feeling of loss of control. With an Advance Directive, you can take back some of that control over your own life.
Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. Did you get the Mark Twain reference? If you did, let me know on Twitter!