Lawyers have no business in the field of advance care planning

When I was a practicing attorney, my colleagues and I would sit around at lunch, arguing about whose sandwich was better. Alone in our world of books and “right and wrong,” (as in “I’m right, and you’re wrong”), we spent hours creating problems to solve so we could make money. Lawyers — like many professionals — form their own little bubble, but unlike say, IT guys or architects, our bubble is filled with righteousness.  And our bubble’s better than your bubble.

I was a litigation attorney for 15 years and the very qualities that made me a good lawyer made me kind of a lousy human.  Arrogance, aggression, a niggling persnickety obsession with every little thing — are highly valued in the legal profession. But litigation wore me out, grated my soul up like cheese.  I billed my last hour in 2004, gave away my stuff, and left the East Coast to be a cowgirl in Colorado.

Turns out lawyers, the human equivalent of gnats on a summer’s eve, are everywhere, even out here in the Wild West.  Like the old horror movie, Night of the Living Dead, you can’t escape them.  I hung up my chaps and headed back into civilization to make a living which I do now as a health care consultant in an area called advance care planning.  This is the process of having individuals, families, and their health care tribe talk about what they want their lives to look like as they get sick or old.  Lo and behold, who shows up to weigh in on this?  Yep.  The lawyers, laying claim to the reams of fussy paperwork around “estate planning” (which is about dead you, not living you) and not even understanding that humans — while alive and making decisions about future medical care — need space to talk to each other and their doctors.  What they don’t need is check boxes and legalese.

In the 90s there was a series of very sad cases, three 20-something year-old women who ended up in chronic vegetative states due to accidents or overdoses. Parents and spouses argued in court while their poor corpses stayed alive on machines. These cases (Karen Ann Quinlan, Nancy Cruzan, and Terry Schiavo) led to the passage of the Patient Self-Determination Act, a law that allows folks to determine their future on life support (or not) via the living will.” Will?  Did someone say “will?”  Cha-ching!  Another document we can create, own, and scare people about.  And this is how lawyers stepped in to own your dying process.  Without a heart for the work or an understanding of the doctor-patient-family triad, the suits jumped in and decided they would own the process of documenting death.

Lawyers have no business in the field of advance care planning. You don’t need a lawyer to appoint a health care agent, and living wills are no longer worth the paper they are very expensively printed on.  Lawyers don’t get this because they don’t get health care in the trenches. Understand that I’m committing heresy here and as we speak someone is preparing to sue me for the unauthorized practice of law.  Whatever.  I’m on a mission to wrest the dying process from the lawyers and give it back to the people and their health care team

Here’s what happens when a lawyer gets involved in advance care planning: They tell you to appoint a health care agent, but don’t stress that you must talk to that person and all other loved ones about your values and range of decisions.  They have you check the boxes on a living will (DNR, DNI, etc.) but don’t disclose that it’s basically a useless document.  Clients leave thinking they have a do not resuscitate order when in fact they have a document that will likely be lost in the system somewhere, and no one will even invoke until the patient is (1) unconscious; and (2) declared brain dead or terminal by two physicians.

Trust me, by the time that document comes into play you are already “machined up,” in the ICU, tubes, and vents everywhere.  Lawyers have no idea how ineffective this document is.  Then, after having you sign forms prepared by their paralegals, in addition to charging you too much and not informing you enough, they often just have you pack the whole bunch of papers into some obscure place where no one knows about them.  Totally useless, but worse, the whole scenario gives you a false sense of security, I’ve taken care of that now, when in fact, you haven’t done it correctly or effectively.  At all.

Death is not a medical emergency or a legal matter.  It’s a natural process that we have altered through technology. This can all be avoided by some pretty simple steps — like talking to your loved ones, filling out your own medical durable power of attorney (here’s a guide to state documents), disseminating them to everyone involved from family to physicians.  And then talking some more.  My ER doc friends tell me there is no document that comes close to the help of a well-informed family at the bedside.  And with the current chaos in electronic medical record systems, chances are no one will ever know of or see that $500 document you signed in some lawyer’s office.

You may not be able to keep lawyers out of your life, but you can for sure keep them out of your dying process.  You don’t need a lawyer to make a future health care plan.  Just talk to regular people — your family, friends, and health care team. Talk early and often about what really matters to you.  You’ll only end up in a “to pull or not to pull the plug” scenario after a hundred smaller decisions made by doctors and family. You can empower your people to make sure that you remain in control of your dying process even if you can’t make decisions at the time.  Give others the power to do that.  Just make sure they don’t have “esquire” after their names.

Phyllis Coletta is an attorney and can be reached at her self-titled site, Phillis Coletta, JD.

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