National Survey: Only One Third of Baby Boomers Have Living Wills

Posted: Sunday, May 01, 2005
In light of this important public policy issue, the National Academy of Elder Law Attorneys has issued the following statement. For more details, contact: Stan Samples, Kellen Communications, 404-836-5050

With the spotlight on the Terri Schiavo case in the last week, there has been a great deal of discussion generated about life vs. death issues, whether or not Congress should have gotten involved, who should have the right to make her decisions and actions people can take to avoid finding themselves in her position. Of significant impact is the need for the largest segment of the population ? Baby Boomers ? to create a living will earlier in life. According to just released figures from a national consumer survey on elder issues, only 33.5% of Americans 35 to 49 years of age have a living will.

The National Academy of Elder Law Attorneys has found this to be an opportune time to educate the public about the importance of preparing advance directives. The preparation of living wills, powers of attorney, and health care proxies is extremely important for everyone over the age of 18. Dying may not be an issue any of us wants to think about. In fact, most people ignore or deny thoughts about their own death. However, if you have been through one of these cases, as an attorney or a family member or even as a friend, you can not deny the importance of those around you having specific direction on the decisions you want or would not want them to make on your behalf.

Advance directives (living wills, powers of attorneys, and health care proxies) are legal documents that express an individual's wishes with regard to medical decisions. They are intended to provide direction to a designated "agent" to speak on behalf of a person who is unable to speak for himself. An agent under an advance directive has legal authority to make any decisions and take any actions for the individual who appointed them. Advance directives may consist of one or more documents and are vital when a serious illness or injury causes the person to be unable to convey his wishes to medical professionals.

The format and form of advance directives vary by state and consultation with an attorney is critical to address the legal nuances, personal preferences, and state differences. It is important for an individual to appoint a trusted person to speak for him when he is unable to speak for himself with respect to medical and end-of-life decisions. Once that person is appointed, it is vital that the individual explains his directions as to the type of medical care he does or does not want. The verbal directions will further clarify specific wishes and priorities as they relate to health care decisions. The appointed individual is then charged with making decisions for that person based on the directions received in the advance directive (not based on his own personal wishes or preferences).

When drafting advance directives, an individual's wishes for health care and end of life decisions must be specifically addressed to assure that they will be carried out. This includes following religious preferences, personal preferences and preferences for or against specific medical procedures. As in the Schiavo case, citing specific times when artificial nutrition or hydration is to be sustained is vital. Considering the significance of these decisions, it is important to appoint an agent who will follow the individual's directions even if family members, medical professionals or friends disagree. Often an attorney is in the best position to assure that the directions are carried out in accordance with the advance directives.

Questions Consumers Should Consider For Health Care Decision Planning

The National Academy of Elder Law Attorneys (NAELA) advises consumers to consider five key items when speaking with an elder law attorney about a living will, health care power of attorney and health care proxy:

? Who will serve as your Agent for Health Care? Who will serve as the alternate?

? Are there certain medical treatments or pain control measures you want or don't want?

? Do you wish to take or refuse any medication that may reduce or eliminate the ability to communicate?

? Do you have any particular directions regarding specific health care facilities, religious preferences, disposition of your body, donation of bodily parts for transplant or research, etc?

? What directions will you provide related to end-of life decisions specifically regarding:

o if you can no longer eat, drink or breathe on your own;

o if you cannot function independent of machines;

o if you are confined to bed;

o if you have no cognitive abiliy

Ignoring an issue does not mean it will never happen or it will go away. Think of the effect on your loved ones if you should suffer a major accident or illness on your way home from work tonight. Would your spouse, children or parents know what you would want? Would they make the same decisions you would if you haven't put them in writing? Would they feel comfortable sustaining your existence in a vegetative state or if you could not communicate with them? Would they know if you would or would not want to continue living if you were to lose major physical or mental capacity? These are tough decisions to make under any circumstances and especially tough under duress.

Remember: these documents are meant to protect you AND your loved ones. To search for an elder law attorney, who is knowledgeable on the requirements in your particular state, visit and click on "Locate an Elder Law Attorney".

About the National Academy of Elder Law Attorneys

Established in 1987, the National Academy of Elder Law Attorneys (NAELA) was formed to enhance the quality of legal services available to the elderly and people with special needs in the United States. Members of NAELA are attorneys who have demonstrated experience and training in working with the legal problems of aging Americans and disabled individuals.

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