Advanced Directives: Are Attorneys Actually Serving Their Clients and their Families?

 

This guest post is from Regent Family Law student Harold Boatwright:

         The drafting of an advance directive can be a serious decision for many, but for others nothing more than signing a document along with a dozen more at an attorney's office, or even at the hospital. While everyone hopes that this document will never need to be used, the reality is that with advances in medical science people can be kept alive long after serious injuries. A first-year law student could see a problem with any ambiguity in this type of document but are advance directives being properly drafted to avoid these dangers?

States differ on whether they supply a form for people to sign or leave individuals to draft language themselves regarding their end-of-life decisions. Many will choose to have an attorney draft these documents but without a level of medical care specified, is there any real meaning from the words on the page? One phrase that has been used in thousands of directives to refuse further treatment is “When I can no longer carry on a meaningful life.” The origin of the phrase is a form published by the American Bar Association in 1989 and has since lingered in form directories of firms all over the country. This wording is commonly accompanied by phrases like “reasonable quality of life,” “extraordinary measures,” and “heroic measures.” This type of language can bring about more confusion than clarity when a decision needs to be made.

The burden of the solution relies not only on the attorney but also on the client. To save their families from hard decisions and painful litigation clients need to take the time to be specific with their goals. Similarly, if attorneys are charging clients for drafting these documents they need to be detailed in their work and ask potentially difficult questions to truly serve their clients.

Advanced directives can be an effective tool when tragedy strikes a family by saving the surviving members from having to make hard decisions but only when specific instructions are given. Attorneys and clients both should take the time to work together to create an effective document instead of using generic language that invites litigation and makes a difficult situation much worse.