Getting Started with Advanced Directives is just as its title suggests – a comprehensive guide to assist a practitioner who may be new to estate planning or elder law. But Kirtland and Jackson’s book goes further than that and offers guidance for experienced attorneys as well. The authors provide a holistic discussion of end-of-life wishes, including the history of advanced directives, physicians’ orders, restrictions and considerations for different faith groups, and recommendations for advising clients during a pandemic. These additional sections assist attorneys in identifying conversations that they may need to have with their clients.
The book begins by defining advanced directives as documents that allow a patient control over health care decisions when he or she cannot speak for him- or herself. The goal of the directive is to allow autonomy for the patient and peace of mind for the family. Such directives have been recognized in all 50 states (and Washington, D.C.) for approximately 30 years, though the forms and statutes vary considerably from state to state.
Diving deeper into patients’ options to make their end-of-life wishes known, Kirtland and Jackson dedicate a chapter to Physician’s Orders for Life-Sustaining Treatment (POLST). At the outset, the authors note that 1) attorneys cannot draft POLST forms, as they are medical orders signed by a physician, and 2) these documents are only appropriate for individuals with life-threatening conditions. Even though attorneys will not draft POLST orders, Kirtland and Jackson argue that it is important for attorneys to know about them so that they can provide comprehensive advice to their clients.
POLST orders are medical orders kept within the patient’s file, so these orders avoid the problem of needing a family member to find the directive and bringing it to the hospital. However, POLST orders have a significant potential downside. For a POLST order to transfer to another facility, the prescribing physician must have privileges at the new facility. Otherwise, the order can simply be removed from the patient’s file. Like directives, POLST regimes vary tremendously from state to state but may be part of a comprehensive plan for clients with life-threatening conditions.
Kirtland and Jackson further describe problems with directives, which will be familiar to experienced practitioners. A majority of individuals do not want to have discussions about life and death and simply avoid the topic. Or they do not provide copies to their families and/or agents under their Medical POA. Or they change their minds in the face of a new diagnosis or illness. The authors’ review of these issues will undoubtedly assist new practitioners as they advise clients planning for potential incapacity.
The authors provide a review of aid-in-dying regimes, which are available in nine states (and Washington, D.C.). Importantly, aid-in-dying involves allowing a terminally ill patient to receive drugs to self-administer to end his life. Electing for aid-in-dying is not part of an advanced directive or something that may be executed by an agent under a Medical Power of Attorney. This discussion gives attorneys a broader knowledge base of the options available to their clients and may help identify questions to ask clients, particularly in the jurisdictions that allow for aid-in-dying.
Kirtland and Jackson provide an overview of end-of-life restrictions and considerations for five faith groups. Much like the aid-in-dying chapter, this discussion will help attorneys ask the right questions of their clients. But perhaps the most helpful portion of the book, especially for new practitioners or attorneys who practice in more than one jurisdiction, is the appendix containing directives from each state. Kirtland and Jackson provide an overview of the state’s form (if any) as well as signing requirements.