Provided by: Jennifer Kirschenbaum, Esq.
January 8, 2019
A patient's family I was treating in the ICU came in with what I believe to be a forged advance directive. I treated in accordance with it. What is my exposure?
Mess. What a mess. Damned if you do, damned if you don't. We would have to show you had good reason to substantially rely on the document being legitimate. Patient may not have been available for confirmation, requiring the need for the presentation of the document at the time. One way to avoid this is, if you are a primary care doctor, collect advance directives from your patients at annual visits, or on non emergent appointments - keep handy off of EMR - or have this difficult discussion with your patients and document.
The AMA weighs in on Advance Directives - and reserves a fair bit of discretion for the physician, view here - https://www.ama-assn.org/delivering-care/ethics/advance-directives.
Liability? Perhaps individuals there or not there, with differing requests for the patient could file a complaint with the facility or state licensing board. We live in a society where you can sue for any reason, pretty much - so always that.
I do not have a Will in place. Not really a question, just a reality. I haven't made the time and don't know if I have to take the time to get it done. Thoughts?
Some of you know I had the nerve to head out of town over Christmas. I left my 14 month at home with my parents and took my 4 year old. 12 hours before departure I finally dragged my husband to the office and put together our Wills, with notaries and the whole shebang. A Will is an administrative task, for sure, that requires a bit of soul searching and some, albeit usually limited, expense. But, if you have loved ones that need taking care of, or specific bequests you want effectuated if you are not around, you have to make the time to get it done. Decisions you will need to make: if you have dependents, who will care for them (name Guardians and substitute Guardians); if you are leaving money to those dependents, who will serve as Trustee (can be a different person from a named Guardian, and should be someone with administrative experience you trust not to steal from your estate (since they can get fees) and you trust to follow you directives if you pass away - sometimes your lawyer); who will serve as your Executor (thankless job that is usually compensated - administrative and works to settle estate - sometimes your lawyer); and of course, who are you leaving what?
That being said, the process can be pretty quick. If you are looking for a basic Will with most likely a Trust component for minors or dependents, that document is usually pretty straight forward (which mostly translates to minor cost imposition and time imposition). If you die without a Will any dependents and miscellaneous assets will be subject to the surrogate court/probate system - total mess.
While you are getting a Will, I also recommend practicing what some of you may preach and you have drafted your healthcare proxy and advance directives.