When I was a practicing attorney, my colleagues and I would often sit around at lunch, arguing about whose sandwich was better. As a beleaguered single soccer mom, I sometimes welcomed the opportunity to fight about anything. It was habitual, and sort of a stress reliever like a good gym workout. Alone in our world of books and “right and wrong,” (as in “I’m right and you’re wrong”), we spent hours creating problems to solve so we could make money. Lawyers – like many professionals – form their own little bubble, but unlike say, IT guys or architects, our bubble is filled with righteousness. And our bubble’s better than your bubble. I was a litigation attorney for 15 years and the very qualities that made me a really good lawyer made me kind of a lousy human. Arrogance, aggression, a niggling persnickety obsession with every little thing…. these are highly valued in the legal profession. Of course, when you’re a girl lawyer and you act like a guy lawyer you’re considered a “real bitch” which is a badge of honor in my former profession. But I’m digressing from the point. I sometimes did this in Court, to direct the judge’s attention away from my client’s crummy case, for instance. It worked pretty well, but there’s only so much smoke you can blow up a judge’s robe before you run out of hot air. Litigation wore me out, grated my soul up like cheese. I billed my last hour in 2004, gave away all my stuff, and left the East coast to be a cowgirl in Colorado.
Turns out lawyers, the human equivalent of gnats on a summer’s eve in Jersey, are everywhere, even out here in the Wild West. Like the old horror movie, Night of the Living Dead, you can’t escape them. I hung up my chaps and headed back into civilization to make a living which I do now as a healthcare consultant in an area called Advance Care Planning. This is the process of having individuals, families, and their healthcare tribe talk about what they want their lives to look like as they get sick or old. Lo and behold, who shows up to weigh in on this? Yep. The lawyers, laying claim to the reams of fussy paperwork around “estate planning” (which is about Dead You, not Living You) and not even understanding that humans – while alive and making decisions about future medical care – actually need space to talk to each other and their doctors. What they don’t need is check boxes and legalese.
In the 90s there was a series of very sad cases, three 20-something year-old women who ended up in chronic vegetative states due to accidents or overdoses. Parents and spouses argued in court while their poor corpses stayed alive on machines. These cases (Karen Ann Quinlan, Nancy Cruzan and Terry Schiavo) led to the passage of the Patient Self-Determination Act, a law that allows folks to determine their future on life support (or not) via the “Living Will.” Will? Did someone say ‘will’? Cha-ching! Another document we can create, own, and scare people about. And this is how lawyers stepped in to own your dying process. Without a heart for the work or an understanding of the doctor-patient-family triad, the suits jumped in and decided they would own the process of documenting death.
Lord, they are such a pain in my ass.
Lawyers have no business in the field of Advance Care Planning. None. Zero. You don’t need a lawyer to appoint a healthcare agent (through a Medical Durable Power of Attorney) and Living Wills are no longer worth the paper they are very expensively printed on. Lawyers don’t get this because they don’t get healthcare in the trenches. Understand that I’m committing heresy here and as we speak some very tight sphincter somewhere is preparing to sue me for the unauthorized practice of law or something. Whatever. I’m on a mission to wrest the dying process from the lawyers and give it back to the people and their healthcare team. It’s noteworthy that lawyers actually can kill us in many ways – death by a thousand subpoenas – but still, this is none of their business.
Here’s what happens when a lawyer gets involved in Advance Care Planning: they tell you to appoint a healthcare agent, but don’t stress that you must talk to that person and all other loved ones about your values and range of decisions. They have you check the boxes on a living will (DNR, DNI etc.) but don’t disclose that it’s basically a useless document. Clients leave thinking they have a Do Not Resuscitate Order when in fact they have a document that will likely be lost in the system somewhere and no one will even invoke until the patient is (1) unconscious; and (2) declared brain dead or terminal by two physicians. Trust me, by the time that document comes into play you are already “machined up,” in the ICU, tubes and vents everywhere. Lawyers have no idea how ineffective this document is. Then, after having you sign forms prepared by their paralegals, in addition to charging you too much and not informing you enough, they often just have you pack the whole bunch of papers into some obscure place where no one knows about them. Totally useless, but worse, the whole scenario gives you a false sense of security, I’ve taken care of that now, when in fact you haven’t done it correctly or effectively. At all.
Lawyers are important if you’re in trouble or you have a lot of money. Death and dying are trouble, alright, but not the kind a lawyer can anticipate or avoid. It’s not a medical emergency either. Death is just a natural process that we have altered through technology. Unable to keep our minds on pace with medical progress, we tend to hide our heads in the sand and then act horrified at these awful endings created by medical aggression. This can all be avoided by some pretty simple steps – like talking to your loved ones, filling out your own Medical Durable Power of Attorney (here’s a guide to state documents), disseminating them to everyone involved from family to physicians. And then talking some more. My ER doc friends tell me there is no document that comes close to the help of a well-informed family at the bedside. And with the current chaos in electronic medical record systems, chances are no one will ever know of or see that $500 document you signed in some lawyer’s office.
You may not be able to keep lawyers out of your life, but you can surely keep them out of your dying process. You don’t need a lawyer to make a future healthcare plan. Just talk to regular people – your family, friends, and healthcare team. Talk early and often about what really matters to you. You’ll only be in a “to pull or not to pull the plug” scenario after a hundred smaller decisions made by doctors and family. If you want to end up tethered to a machine you certainly can be, but it doesn’t have to be that way. You can empower your people to make sure that you remain in control of your dying process even if you can’t make decisions at the time. Give others the power to do that. Just make sure they don’t have “esquire” after their names.