Book Review: Being Mortal by Dr. Atul Gawande

Legal Newsletters
Attorney Dorothy L. Korszen - Trusts & Estates - Venice Florida

Attorney Dorothy L. Korszen practices in the area of Trust and Estate law.

It is common for people to delay making end-of-life decisions.  No one wants to admit to their mortality!  Nonetheless, no one will last forever, so it’s best to address these issues while you can.

In Being Mortal, Dr. Atul Gawande provides insight and personal experiences into the decisions we all may face regarding end of life care for ourselves and our loved ones.   He provides examples of how the type of care you receive can make the end of life meaningful for yourself and for those around you.In the US, 25% of all medical care spending is for the 5% of patients who are in their final year of life.  Most of that spending occurs in the last few months and is of questionable benefit.  Rather than focusing on the quantity of life, perhaps we should evaluate the quality of the life that remains to be lived.  This will require honest discussions with medical professionals regarding treatments, side effects, and possible outcomes.

Preparation of medical directives is an important part of estate planning.  Your will and/or trust specifies how your property will be distributed after your passing, and your power of attorney appoints an agent who can handle your business affairs while you are living.  Often, the medical directives are executed as a generic document with little thought about the terms.

Medical directives typically contain three parts: (1) your living will, (2) your designation of health care surrogate, and (3) a HIPAA release which allows your health care surrogate to obtain otherwise private medical records.  Your living will spells out what, if any, life prolonging procedures you wish to be performed.  Under Florida law, two physicians must first determine there is no reasonable medical probability of recovery before addressing the issue of life prolonging procedures.  Along with your documents, you should have conversations with your loved ones to make sure they understand the quality of life you wish to experience at that point.

So what happens if you fail to plan?  Florida law provides the following  list of persons, in priority, who may make medical decisions for you: a court appointed guardian, if any, a spouse, a majority of adult children, a parent, a majority of adult siblings, an adult relative who has exhibited special care and concern and has maintained regular contact, and last, a close friend.  A close friend means a person 18 years of age or older who has exhibited special care and concern and who presents an affidavit stating that he or she is a close friend and is willing and able to become involved in your health care and has maintained such regular contact so as to be familiar with your activities, health and religious or moral beliefs.

If there is no living will, before making decisions on end-of-life care, the health care surrogate’s decision must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen.  This should demonstrate how much simpler it would be for your loved ones to know your wishes in advance.

Being Mortal provides several examples addressing geriatrics, the aging process, and the decisions people make in end-of-life care.   Hopefully, this book will offer guidance to you as you make these decisions.