March 16, 2014 by

Mom would have never wanted that!” the woman shouted as she slammed her hand down on the conference table. Across from her sat her brother with a scowl on his face. So began one of the saddest representations I’ve encountered over more than 20 years as an elder law and estate planning attorney.

It turned out that their mother had recently suffered a massive stroke, one that had left her comatose and, according to her neurologist, brain dead.

She and her husband had Health Care Powers of Attorney (HCPOA) prepared by the family’s general attorney many years ago. Her husband later died, and she had not updated the HCPOA, which designated her two children as successor Co-Attorneys-in-Fact for health care decisions in the event that her husband was unable to perform those duties.

Unfortunately, she had never prepared an Advance Directive (Living Will) to make her wishes known if something like this were to happen to her. Also, she had not signed a HIPAA release authorizing her children to obtain medical information from her physicians. She had not discussed her wishes with her primary physician, her children, or anyone else.

And now it was, sadly, too late to ask her.

The daughter was sure that her mother would not have wanted to be maintained alive artificially with a ventilator, feeding tube, and “all kind of hoses and wires stuck into her.” The son was just as adamant that everything medically possible needed to be done to keep her alive, “because miracles do happen.” I later learned that the mother and he had been estranged for a number of years, and he desperately “hoped to make peace with her.” He also suspected, I was told, that medical personnel were sharing information with his sister and not with him.

The children were hopelessly deadlocked. The mother’s physicians couldn’t change anything without both of them agreeing. We ended up having to go to court. After several laborious, expensive, and time-consuming hearings at a time when the family was already dealing with the heartbreak of their mother’s medical condition, the judge appointed an independent party—in this case a lawyer—as Mom’s guardian.

This ended up tearing the family apart. The children and their children may never have a good relationship again.

I recount this story because this was all unnecessary in terms of her care, having her wishes followed, the expenses of it all, and family disruption. Shared decision-making for health care has great potential for disaster. She should have updated her HCPOA, probably in this case naming her daughter as Attorney-in-Fact. Conversely, she should have named both of her children in a HIPAA release so both had equal access to medical information, and so there would be no thought that doctors were being selective in the sharing of important information. She should have also prepared a Living Will giving end-of-life directions to her physicians and, to the extent possible, discussed those directions with either or both of her children.

Unfortunately, Mom didn’t know what she didn’t know. But now you do. Don’t let this happen to you or your family.

Guest contributor Margaret A. Badura is an elder law and estate planning attorney.

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