A plea to Elder Law attorneys and others who are writing people’s Advance Directives

For the record, I am a fan of lawyers and am incredibly grateful for all the ways they take care of us and protect us.

When someone wants to document their wishes in an advance directive, living will or durable power of attorney, the person who will be signing the form must have the ability to think for themselves. This is called decisional capacity or competency. Although a person doesn’t need to use a lawyer for these forms many people do. When someone brings in a form, which was completed by a lawyer, healthcare professionals assume that the lawyer made sure that the person had the capacity to think before allowing them to sign the form.

I don’t know if other people are aware of this issue but it has been recently brought to my attention that there is an industry practice within elder law community where lawyers are writing advance directives for people without capacity. They work with the family to determine what the person would have said, then proceed to have the person, who has limited or no capacity, sign the advance directive. (Not every attorney does this, but many do. There are many fine lawyers out there who are protecting the public.)

Their justification is that it is actually protecting the family from having to go to court to establish conservatorship later on. Their intentions are good, but their practice is illegal. When I brought this to some elder law lawyer’s attention, they had no defense. And when I explained that it now brought doubt to the validity of all legally prepared advance directives, I only got blank stares.

I have asked around and this is not an isolated incident. It makes me now question if I can even believe a lawyer prepared document that the family brings in. As an ethicist and healthcare professional, I am asking those of you who work in the industry to make sure you are only having those who understand what they are signing, sign their documents. The skilled nursing home community has a legal protection in place by mandating that an outside ombudsman witness the signing of legal documents to make sure those with disabilities aren’t being taken advantage of. I would hate to see the legal community need to have a similar watchdog in place. I need all of you to do the right thing so I can then use these documents to advocate appropriately when these individuals are in my hospitals.

Have a kind and respectful day.