“But doctor, I have never spoken with the patient about health care decisions, so I do not know what to do,” is not the answer physicians want to hear from health care proxies. (Proxy is the legal term for agent under a living will or advanced directive for medical care.) It is very difficult to make medical decisions for someone at any time, however, it is even worse, if you never talk with that person about his or her care.
While it may be a horrible topic of conversation and one you do not want to have, by doing so you gain that most important bit of knowledge you need: what does the patient want you to decide? The guidance you need can only come from one source, so hesitate no longer, contact the person who has asked you to serve and find out what is wanted.

You can begin by discussing the diseases or illnesses that run in the person’s family. Then discuss the particular personal situation. Ask about Do Not Resuscitate (DNR) and Do Not Hospitalize (DNH) orders. Should morphine be used to control pain? Would the patient want to initiate a procedure such as breathing or feeding tubes, and then stop the procedure if it is not working? What about dialysis? Should you even start a procedure? The more information you gather, the more information you will have to guide you should it be necessary for you to speak for another person.

I have been helping families deal with medical decision making for over 30 years. Families have contacted me after the decisions were made to say that “The Conversation” was so helpful, especially since all of the family members were included in the discussions and no one argued that the ultimate decision was not the one that patient would want.

Unfortunately, there are those who never discussed the issue with the patient beforehand. They were torn by indecision, and also guilt. “Did I make the right decision or was I right not to make one, because I just did not know what to do?”

You will not make the proxy’s job easier by having “The Conversation,” but you will be making the job immensely harder by not having it. You can always say that the lawyer made me do it.

Daniel D. Olszak, Jr. is Of Counsel at DEMLP in the firm’s Tax and Estate Planning Department. He is certified as an Elder Law Attorney by the American Bar Association approved National Elder Law Foundation.