Cadence of Time – Benefits of Advance Medical Directives

By Attorney Katherine S. Charapich, Esq.

Published January 16, 2019 - INSIDENOVA / Culpeper Times

Estate Planning : Advance Medical Directives

The man in black. I am not sure there is any singer who has ever been able to evoke the same emotions that one feels when listening to recordings of Johnny Cash singing live at Folsom State Prison. From the confident drawl of, "Hello, I'm Johnny Cash," to the lyrics of, "A Boy Named Sue," there is a cadence unmatched - an ability to capture the crowd, to weave a common thread between those on the outside and those looking out.

A complicated man, yet with a gift of a voice unduplicated and musical storytelling that ranged from worship to the outer limits of societal acceptance. In fact, Wikipedia classifies the genre as "outlaw country."

Entering the prison gates - more than once, perhaps not for us to understand. I do know that whether I was ten and first listened to, "One Piece at a Time" - a story of a dream car built from absconded parts, to now when I reflect on the words to, "The Man Comes Around," I wonder how many lives in those vast audiences were changed by such a message.

Recently, as I attempted to get an early start on a New Year's resolution to work out, I pulled up a video of Zach Williams walking into Harding Prison and then singing, "No Longer Slaves" to those within the prison walls. Though a different music genre, the scene brought back similar emotions of seeing Johnny Cash walk thru the steel bars.

"I wear the black for the poor and the beaten down, livin' in the hopeless, hungry side of town . . ." Yes, Cash was simply a man; however, a man with a mighty talent and symbolic dress - a powerful message, which continues to affect many.

As an estate planning attorney, I am frequently afforded a glimpse into the private lives of clients seeking to prepare for the threshold of death. I treasure the sharing of the fears, struggles, and celebrations. Though most of my clients are older adults, as those under fifty seem not to understand how quickly the years may pass, or as hard as the reality may be - that they may not have many years in front of them.

There is a common thread that is expressed - a wondering at life . . . is it one well-lived? From the new adult who experiences the epiphany that one is put here for a purpose, to the senior who realizes there may be precious days left to make a difference . . . A talent - you have it. A calling - lean in, listen attentively. A purpose - absolutely!

The commodity is TIME. Spend it, trade it, squander it - you can't retrieve it. However, you can pursue it, treasure it, maximize it, and put in place mechanisms to make it work exponentially.

How one honors the time given to her is different for each person. Here, I address how to plan for the time in which you may find yourself beholding to another for medical care.

In § 54.1-2983 of the Code of Virginia, the procedure for making an advance directive is set forth. "Any adult capable of making an informed decision may, at any time, make a written advance directive to address any or all forms of health care in the event the declarant is later determined to be incapable of making an informed decision."

An advance medical directive is an estate planning document that is utilized in the event an individual is unable to make decisions for her medical care. Thus, though one signs an advance medical directive during the signing ceremony in an attorney's office, the document does not go into effect until specific preconditions are in place. For example, the document will be effective when your attending physician and a physician or licensed clinical psychologist unrelated to the case, certifies in writing that the individual does not have the cognitive ability to make medical decisions for her care.

An advance medical directive affords one the ability to set forth the parameters that are acceptable to her for medical care, and an agent and successor agents who have the legal authority to carry out the declarant's health care wishes and make decisions for her medical care.

Think of an advance medical directive as addressing three medical-related components: (1) if one is ill or in an accident and unable to make a medical decision for her care, (2) if one has a mental health challenge, her agent can admit her to a mental health facility for up to ten days, and (3) end-of-life wishes and care. For example, whether she wants her life to be sustained through the aid of machines, hydration and nutrition, surgery, or heroic efforts.

"Life" comes at us quickly. There always seems to be a long "to-do" list, and one may truly believe that time is on her side, and there exists no immediate need for planning.

What if one doesn't prioritize time and resources to put in place an advance medical directive and she becomes ill and does not have the cognitive ability to make medical decisions for her care? § 54.1-2986 of the Code of Virginia sets forth a procedure in the absence of an advance medical directive as well as a procedure when there is an advance medical directive, which fails to name an agent.

If one does not memorialize her wishes for medical care, "the attending physician may . . . provide, continue, withhold or withdraw health care upon the authorization" (§ 54.1-2986 of the Code of Virginia) of those individuals given authority as set forth in the Code of Virginia.

If a person does not name an agent as one who has the authority to make medical decisions for her care, the following is the descending order of those who will be given authority: a guardian for the patient, patient's spouse, an adult child, a parent, an adult brother or sister, any other relative of the patient in the descending order of blood relationship, "or any adult [with a few exceptions] who has exhibited special care and concern for the patient, and is familiar with the patient's religious beliefs and values . . ." (§ 54.1-2986 of the Code of Virginia)

Why leave your medical care to the chance that others "may" or "will hopefully" know or follow your wishes? Why leave the decision making of your care to the exposure that the person being permitted to make such a personal election may not even be someone that you like or trust?

Recently, three different expressions were shared with me that moved me, impacted my heart, and inspired me to be purposeful, make good choices, and utilize my time wisely.

The first, was a younger client who truly grasps that we are on this earth for a reason, and searching for that is paramount. The second, was a client who just lost a parent. As the parent was nearing the end, the parent asked for assurance of one thing, "Will I get to see Jesus?" When receiving an affirmation, the response was, "Well, let's get on with it then." The third, was a spouse sharing the heart-wrenching plea of her husband as he uttered his last breaths, "Isn't there anything, anything at all, you can do to get me some more time?"

Seek fervently to attain a cadence with your time, so that though you know and are confident in the beginning of your eternal chapter, you want more of it - to keep making a difference.

The necessity may be putting in place an advance medical directive so that one can control the elements of comfort, but the object of focus is that of TIME. Realize how precious it is. Guard it. Protect it. The time given to one is uniquely hers - what an incredible gift. Be purposeful with it - use estate planning documents, like advance medical directives, to control what and where you can. With the rest, make it beautiful - an exponential gift to others, whether that means caring for a senior adult, teaching another a trade, helping those less fortunate, or like Johnny Cash, using your talents to inspire beyond earthly limits.