If you have surgery planned, you’ve probably taken steps to prepare for your procedure with your medical team, including taking steps at home to prepare for your surgery by following your doctor’s pre-surgery instructions and diet, but one thing that can get overlooked before major surgery is estate planning. Have you taken the time to speak to your estate planning lawyer to make sure your power of attorney, will, and estate are in order? If you’re having a major or high-risk surgery, you may want to consider including estate planning into your surgery preparation plan.
The reality is that even minor surgeries carry risks, whether that involves short-term disability, a longer-than expected stay in the ICU or hospital, or more serious and unexpected complications. Commonly planned surgical procedures include coronary artery bypass surgery, hysterectomy, hernia repair surgery, back surgery (spinal fusion), mastectomy, hip replacement, knee surgeries, and caesarian sections, according to a Healthcare Cost and Utilization Report prepared in 2014.
While many of these surgeries have excellent outcomes, they each carry the risk of complication. For example, according to Caesarian Section, a publication featured in the National Library of Medicine, the “caesarian section is the most common surgery performed in the United States, with over a million caesarian deliveries performed every year.” While this surgery is viewed as relatively safe and common, complications including major bleeding and post-operative infection can occur.
If complications arise, do you know who has the legal right to make medical decisions on your behalf if you don’t wake up right away or if you end up in the ICU? If something goes wrong in the operating room, does your family and care team know your wishes? Do you have a will or trust in place to manage your estate? If you have children and are their sole caretaker, do you have a plan for who will serve as a temporary or longer-term minor guardian should you end up staying in the hospital longer than expected?
The estate planning attorneys at Truce Law can help you get your legal documents in order before your surgery. Our team of collaborative attorneys help clients have these challenging conversations. We can help you draft estate planning documents you might need, like a living will, advanced health care directive, and last will and testament, and can also help you navigate crucial conversations about your wishes with the people closest to you.
In this article, we’ll explore some of the documents you might want to put in place before your next surgery.
- Advance Directive (Living Will / Health Care Directive)
- DNAR (Do Not Resuscitate Orders) and POLST Forms
- Health Care Power of Attorney
- Minor Power of Attorney or Minor Guardianship
- Last Will and Testament
- Financial Power of Attorney
- Discuss Your Wishes with Family
Advance Directive (Living Will / Health Care Directive)
An advance directive (sometimes also called a living will, or Health Care Directive) allows you to communicate to your family and care team your wishes regarding medical treatment should life-threatening complications arise during surgery or after surgery that leave you permanently incapacitated and unable to communicate decisions to your doctors or family.
According to the Washington State Office of the Attorney General, this document would only come into effect if you were near death or permanently unconscious. A doctor or doctors would need to confirm your condition for the living will to come into effect. Your advance directive can include instructions including your wishes on organ donation, pain management, and quality of life.
What kinds of medical decisions do people typically include in an advance directive or living will? The kinds of instructions a person might put in this document often depends on whether a person is using the document for end-of-life planning for a terminal illness or to provide instructions to family and loved ones in the event of an emergency, accident, or complications with surgery.
- CPR. In your advanced directive (living will) you can include instructions, including whether you wish to receive CPR (chest compressions, electrical shocks to re-start your heart, or mouth to mouth breathing). Older adults, those with chronic serious medical conditions, or those with terminal illness might sometimes ask to not receive CPR in their living will, according to the National Institute on Aging. Yet CPR might be more effective for younger adults in an emergency and will likely not be excluded in a younger person’s living will.
- Ventilators. If you cannot breathe on your own, your medical team may need to decide whether to intubate you and put you on a ventilator. When a person is on a ventilator, they are often sedated. When it comes to end-of-life planning, you’ll need to decide if you want this kind of intervention as time draws short. If you were hurt in an accident, or experienced a surgical complication, would you want to be kept alive on a ventilator if there wasn’t a chance you would wake up?
- Tube Feeding and Hydration. For a person recovering from serious illness or surgical complications, tube feeding, and hydration can help with the recovery process. Individuals entering hospice or end-of-life care might choose to not receive these interventions. If you were seriously injured or face a surgical complication from which you would not be expected to recover, would you want tube feeding and hydration?
- Dialysis. If your kidneys stop functioning, you might be put on dialysis. Some people with terminal conditions don’t want to receive dialysis if it is needed.
- Palliative Care. If you are dying, what kind of care would you like to receive? Some types of pain medication reduce a person’s ability to remain alert and awake when time is short. When considering palliative care, you’ll need to think about what is important to you at the end of life.
- Organ and Tissue Donation. Your living will can include your wishes about organ and tissue donation.
According to the American Bar Association “‘Life sustaining treatment’ means the use of available machinery and techniques, such as heart-lung machines, ventilators, and other medical equipment and techniques that may sustain and possibly extend your life, but which may not themselves cure your condition.” A living will is a document where you can express your wishes regarding this kind of treatment when there is no detectible brain activity or where your medical condition is expected to leave you permanently unconscious or unable to make your wishes known.
If you are terminally ill or seriously ill, you may want to include your doctor and family in planning for end-of-life care, and when planning treatment should major complications arise during surgery.
Under Washington Law, for a living will to be considered valid, two people must witness the signing, and the witnesses must not be related to the individual creating the living will nor must witnesses be in a position where they would receive inheritance from the individual.
DNAR (Do Not Resuscitate Orders) and POLST Forms
Individuals with terminal illness or those facing major surgery with uncertain outcome may also write DNAR orders with the assistance of their doctor. According to UW Medicine’s Department of Bioethics and Humanities, “under certain circumstances, CPR may not offer the patient direct clinical benefit, either because the resuscitation will not be successful or because surviving the resuscitation will lead to co-morbidities that will merely prolong suffering without reversing underlying diseases.” Yet, determining when CPR can have medical benefit and when it doesn’t have a benefit can be “challenging.” Having an honest discussion about your wishes with your doctor and family can help you determine when a DNAR is appropriate.
Another document that might be considered for individuals with terminal illness or in end-of-life care is a POLST form, or Portable Orders for Life Sustaining Treatment. If emergency personnel are called to your home, this form would let emergency personnel know your wishes for resuscitation, permitted medical interventions, artificial feeding, and antibiotic treatment.
Health Care Power of Attorney
A Health Care Power of Attorney designates a specific individual to serve as your medical decision-maker should you be unable to make decisions. A Durable Power of Attorney for Health Care allows you to discuss your wishes for medical care with someone you trust and gives this person authority for making decisions regarding your health care. Without a Durable Power of Attorney for Health Care, doctors will follow Washington’s hierarchy for choosing your surrogate decision-maker.
Under Washington Law, the first person who would have legal medical decision-making authority would either be a guardian or individual granted power of attorney for health care decision-making. If there’s no power of attorney in place, medical professionals would then turn to (1) your spouse, (2) adult children (3) parents of the patient, (4) and adult siblings of the patient. Some people don’t want a parent, or their children having to make these critical decisions or may have a specific person in mind to make decisions.
If you have multiple children, for example, doctors will need to get all your children to agree on a course of action, unless one has been appointed a decision-maker in your Durable Power of Attorney for Health Care. Having a health care power of attorney in place can reduce the risk of confusion, arguments, or issues arising should an emergency occur during surgery, or should questions arise with end-of-life care.
Some people choose to discuss their wishes informally with the person named in the durable power of attorney, and others choose to direct the person named in the durable power of attorney to carry out their wishes as outlined in a living will. Together with a living will, a durable power of attorney can create a powerful end-of-life plan.
If you are going in for routine surgery but want to make sure someone who understands and respects your values is making your medical decisions, having a Durable Power of Attorney for Health Care can give you peace of mind about who will be making your decisions. It can be difficult to have these discussions with family and loved ones. An estate planning lawyer in Seattle, Washington at Truce Law can help you draft these documents and have these discussions with the person named in your durable power of attorney.
Minor Power of Attorney or Minor Guardianship
If you have minor children and are their sole caretaker, have you named a person to serve as a temporary minor guardian should complications arise in surgery? With a minor power of attorney, you can grant someone you trust the ability to care for your children while you are in surgery, and during your expected recovery period.
A minor power of attorney is a good idea to have if you expect that your surgery will leave you unable to care for your children for a limited period while you recover. With a minor power of attorney, you can specify how long you give a trusted individual the ability to care for and make decisions for your children.
If something happens during surgery and you either pass away or don’t recover, you might want to be clear about who you would like to appoint to care for your children. Under Washington State law, the court can appoint a minor guardian if there is no parent able or willing to perform parenting functions. If you do want someone specific to be your child’s guardian, you’ll want to speak to this person before you go into surgery or as you put an end-of-life plan in place.
Should something happen, the person you appoint to be guardian would have to start a guardianship case with the courts. Alternatively, your minor child himself or herself could start a minor guardianship case. You can name the person you want to serve as your child’s minor guardian in your last will and testament.
Last Will and Testament
If something happens to you during surgery, and you don’t have a last will and testament, Washington’s intestate inheritance laws will determine what happens to your estate. Washington’s intestate laws are defined under RCW 11.04.015.
Generally, your spouse or domestic partner will inherit your estate, unless you have surviving children, or surviving parents, in which case, your estate might be divided into shares to be received by your surviving spouse and children. If you don’t have a spouse, your estate will go first to your children, then to parents if you have no children, then to siblings if your parents have passed away, and then to more distant relatives.
If you want more control over how your estate would be handled, you may want to put a will in place. The estate planning lawyers in Seattle, Washington at Truce Law can help you write your will, list assets and beneficiaries (people who will inherit property), and help you designate an executor to handle your estate. An executor is a person you put in charge of handling your affairs and distributing assets after you pass away.
Financial Power of Attorney
A financial power of attorney grants a trusted individual the ability to handle your financial affairs while you are in surgery or recovery. This document gives a trusted individual the ability to pay your bills and do your banking. If you have been diagnosed with a serious illness, terminal illness, expect a long recovery, or are concerned about complications with your surgery, you might put a durable power of attorney in place that grants a trusted person the ability to handle your finances from the day you sign the document.
If you are going into surgery and don’t anticipate needing someone to handle your affairs at all but want to make sure someone is available to handle your finances should complications arise, you could use a springing power of attorney, which would only go into effect only if you were to become incapacitated.
Discuss Your Wishes with Family
Estate planning considerations before surgery force us to confront some of the most difficult conversations we might need to have with family. No one wants to think about what can go wrong during surgery, especially if your surgery is minor, but it’s never a bad idea to discuss your wishes with family and loved ones before any major or minor medical procedure.
When writing your living will, you’ll likely need to confront questions about what matters to you, and what kind of quality of life is meaningful to you. When writing a will or power of attorney, you’ll need to consider which person among your loved ones and family you want in charge of making medical decisions, financial decisions, and decisions regarding care for your minor children.
These are not small questions. And these are big responsibilities to ask someone to take on. It can be helpful to have frank conversations with the individual or individuals you want to entrust with these important and even sacred tasks, and let your loved ones know where your important documents will be stored.
The estate planning lawyers at Truce Law help families make end-of-life plans, and help individuals get their affairs in order before major or even minor surgery. It is never too soon to begin planning. If you are speaking to your doctor about surgery, you might want to include estate planning as part of your surgery preparation plan.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.