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Saturday, June 20, 2009

Do you have a Personal Directive?

About two years ago I was involved in a case where a woman in her mid-90's was brought into the hospital after having suffered a stroke. She was conscious but because of her stroke she was completely paralyzed and could not communicate at all. She was widowed, and her four children were her next of kin. One child was overseas but the other three went to her bedside at the hospital. The woman was being fed temporarily through a tube in her nose. The doctors made it clear that this tube was temporary only and must be replaced by a feeding tube that would be inserted by way of a small incision. The woman's life depended on having that feeding tube placed.

This is where the problem arose. Because placing the feeding tube meant that an incision had to be made, the doctors couldn't go ahead with the surgery without legal permission. I can certainly see their point. I wouldn't want anyone cutting into me without permission! The children at the bedside all unanimously agreed that the feeding tube should be placed, but this wasn't good enough. The woman didn't have a Personal Directive in place naming anyone to be her health care spokesperson.

What could the family do? They asked me for help and I went to the court to obtain an emergency court Order naming one of the children as a guardian with the authority to direct medical care. This was not as easy as it sounds. The judge was furious, as she felt that she had no choice but to grant an Order to save the woman's life, and the courts do not like being told what to do by hospitals or anyone else.

The woman's family was in emotional turmoil for about a week from the time the woman was admitted to hospital to the time she received a feeding tube. I can't even imagine the discomfort the woman herself was experiencing.

All of this could have been avoided if the woman had had a Personal Directive in place naming one or more of her children as her Agent to make health care decisions. Personal Directives are written so that they don't have any legal effect until you need them, such as when you've had an accident, stroke, illness etc. This means you retain the ability to make your own health care decisions until you're in the position that you simply can't do it.

You can give instructions in your Personal Directive about how you would like your Agent to deal with certain matters, such as stating that you do not want blood transfusions under any circumstances. You can also give instructions about end-of-life decisions by describing your wishes about being kept alive artificially when there is no hope of recovery.

These are not pleasant things to think about. But they are even less pleasant when they happen and there is nothing in place to help those trying to cope with the situation.

If you do not have a Personal Directive in place, contact an estate planning lawyer to have one prepared for you. Let your wishes be known. You and your family will both be very glad you did.

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