Tonight a very close friend and nationally-known elder law practitioner lies in a hospital bed, unconscious for the seventh night since his cardiac arrest. He is one of the most physically-fit men I know, and I hope like hell that his lifelong attention to fitness will be the thing that pulls him through. But that's not what I wanted to write about.
This man is one of the main figures in his state advocating that everyone ought to sign appropriate advance directives, and he took his own advice. I have no doubt what his intentions were when he signed the forms, and I have no doubt that they are in excellent order (though I have not seen them, and would have no reason to have reviewed them). I'm sure they name his wife as his agent, and that would be completely appropriate. She has been married to him for over 30 years, she is the mother of their two lovely adult daughters, and she is a physician. She is obviously qualified to act for him, and there could be no better choice. In fact, we should all wish we had such a perfect candidate to act as our own health care agents.
I know him well enough, and this issue has been a topic of discussion often enough, that I am pretty sure his wishes are pretty much in line with my own -- and, indeed, with those of the majority of my clients. But I'm not sure they are the right choice.
He has had a medical tragedy. His prognosis is guarded. If he recovers, he might well be permanently injured -- and I strongly suspect he would have said he didn't want that. But he has been on a respirator for two periods during the past week, and we can reasonably assume that his treatment has been more aggressive than he thought he wanted, and more aggressive than he would have approved for himself. Still, I think that aggressive treatment has been right.
Why? Because he is not the only figure in the drama. Assuming that he would have absolutely forbidden a respirator (I don't think he would have, or did, but let's assume it for a moment), the law of advance directives is clear that his wife should be bound by that uncompromising position. But it would be wrong. He might get better, and his sudden cardiac arrest deprived all of us -- and particularly his close-knit, loving family -- of the opportunity to come to grips with his mortality. Would it have been different if he had been 87 instead of 57? Perhaps, but perhaps not -- on the strength of this one personal crisis (and one glass of wine) I am not prepared yet to generalize about the issue.
Suppose his wife said "I know he would hate this, but I have to do it." Would I argue for an absolutist approach? Would I insist that the hospital ethics committee be convened, or a court proceeding initiated? No. And that makes me wonder about my own advance directive, and yours, and my clients'.
It absolutely makes a difference to me that the wife's motives are positive, that the relationship is strong and long-term, and that her self-awareness is high. But I think maybe I should soften the stridency of my advance directives, and admit of the possibility of in-crisis adjustment for the benefit of the individual, his or her agent, their families and their communities. I'm deeply glad they're still trying, and I hope it works. She's doing the right thing, and she's doing it out of love.
Robert Fleming
Fleming & Curti, PLC
Tucson, Arizona
www.elder-law.com
www.specialneedsalliance.com
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