Your Medical Directive – Emphasizing the Patient Advocate

What’s the most important feature in an Advance Medical Directive?

Most people think it is the written guidance they provide to their loved ones when facing end-of-life issues. After all, in most medical directives, this guidance is the very first thing that appears in the document.

I believe such an emphasis is misplaced. For most people, the most important feature of a medical directive is that it empowers the person you choose as your patient advocate.

Keep in mind that a person’s medical directive is most relevant and useful when the person is in a hospital or similar institutional setting. The typical person in this setting does not have a terminal condition and therefore has no need to express end-of-life wishes. But very often, a person in this setting is unable to advocate for himself or herself in the event he or she is being ignored or mistreated.

That is why it is critical to have a medical directive that appoints a trusted person who can be your patient advocate and gives that person the authority needed to serve you in that capacity, including the right to access your medical information. Health care providers are legitimately concerned about breaches of medical privacy. Under the Health Insurance Portability and Accountability Act of 1996, known as HIPAA, they could face significant penalties for unauthorized releases of medical information. Understandably, they are reluctant to release private medical information to a third party without having first an explicit HIPAA authorization.

In my firm’s medical directive template, I emphasize granting the health care agent or patient advocate the powers he or she will need to protect the patient who is being ignored or medically mistreated. I think it is important to specifically reference HIPAA, which most pre-printed hospital-supplied medical directives do not do mention by name.

I do not ignore end-of-life instructions in my medical directive template, but I do not exalt them over the patient advocate provisions. Most clients select from one these two templates for expressing their end-of-life wishes, and tweak the language accordingly:

Option 1: If at any time my attending physician should determine that I have a terminal condition where the application of life-prolonging procedures – including artificial respiration, cardiopulmonary resuscitation, artificially administered hydration, and artificially administered nutrition – would serve only to artificially prolong the dying process, I direct that such procedures be withheld or withdrawn, and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care or to alleviate pain. I understand that applicable law interprets “life-prolonging procedures” to include artificially administered hydration and nutrition.


Option 2: In exercising the power to make health care decisions on my behalf, my agent shall follow my desires and preferences as stated in this document or as otherwise known to my agent. My agent shall be guided by my medical diagnosis and prognosis and any information provided by my physicians as to the intrusiveness, pain, risks, and side effects associated with treatment or nontreatment. My agent shall not make any decision regarding my health care which he knows, or upon reasonable inquiry ought to know, is contrary to my religious beliefs or my basic values, whether expressed orally or in writing. If my agent cannot determine what health care choice I would have made on my own behalf, then my agent shall make a choice for me based upon what he believes to be in my best interests.

For those clients who wish to provide highly detailed guidance, I recommend they complete Five Wishes, a popular document that helps you express how you would want to be treated – physically, emotionally, and spiritually – if you were seriously ill and unable to speak for yourself. The Five Wishes document is a nice supplement to a medical directive that emphasizes the appointment of a patient advocate.

Those Annoying Disclaimers on Emails

If you have ever received an email from an attorney or other professional person, you are well aware of the disclaimers that often appear at the end of such emails. Here is a link to a few samples.  I personally have resisted using them.  I never (well, hardly ever) give legal advice via email, and find most blanket disclaimers tedious.

In 2005 the U.S. Treasury Department adopted revisions to what is called Circular 230, a publication which governs ethical standards of conduct for tax attorneys, CPA’s and other professionals who interact with the Internal Revenue Service.  In 2005, the IRS wanted to curb reliance by taxpayers on informal or off-the-cuff opinions from tax attorneys. In the event of a successful challenge to a taxpayer position by the IRS, a taxpayer might cite reliance on the informal opinion to abate a negligence penalty. The IRS wanted to take this excuse away where the opinion provided was not carefully considered by the provider.

Instead, in order for a taxpayer to have “penalty protection,” the tax attorney had to provide a “covered opinion,” which was highly detailed and costly to the taxpayer. There were severe sanctions authorized for a tax attorney who ran afoul of the covered opinion requirement. Many tax attorneys complained that the new Circular 230 rules brought a tax practice to the point where the complexity for following Circular 230’s ethical rules exceeded the complexity of the Internal Revenue Code itself.

This led to a proliferation by tax attorneys in the use of Circular 230 disclaimers on emails, faxes, and other written communications with clients, such as –

IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code.

The IRS recently decided that its 2005 revisions to Circular 230 were perhaps not such a great idea after all. In June 2014 it adopted these revisions to Circular 230, scaling back on the requirements regarding covered opinions. Reading between the lines, it appears the IRS also wants to discourage the indiscriminate use of disclaimers by tax attorneys that proliferated with its 2005 amendments to Circular 230. Apparently, the IRS does not appreciate being implicitly criticized on the millions of emails sent out by tax professionals each year.

I suspect it will be years before we see the Circular 230 disclaimer appear from most attorney emails. But one practitioner on the ACTEC listserv suggested (tongue-in-cheek) that he would replace his existing disclaimer with the following –

The IRS has made me remove the Circular 230 notice it formally made me put here.  Under  penalty of law you may not rely on, and no inference may be drawn from, the fact that I have deleted the Circular 230 notice the IRS used to make me put here but has now told me not to put here. Further explanation of this notice of non-notice is available at my usual hourly rate.

Happy Father’s Day

In one of my Walter Mitty daydreams, I imagine having an essay broadcast on NPR or appearing on the Op-Ed pages of the Wall Street Journal. Here’s a piece I wrote for a local fiction writing group that sometimes has me as a member. Funnily enough, neither All Things Considered nor the Journal were interested. It’s not about estate planning or estate administration. I hope you’ll enjoy it.

My father died of cancer in 1978. He was just 60. I was only 21, with a man’s body but still a child’s mind. I so wish he could have known the adult me.

I wonder sometimes what would most surprise my Dad about America in 2014. So Dad, if this webpage is accessible on your side of the great divide, here are ten things you might not have seen coming.

First, the internet and cell phones are to this generation what the electrification of homes must have been for Nana and Grampa. I use this technology every day, yet don’t understand how even half of it works. Arthur C. Clarke’s Third Law remains true – any sufficiently advanced technology is indistinguishable from magic.

Second, cars are markedly more reliable and long lasting than in your day. My minivan has 332,000 miles and still has its original engine.  The next new car I buy might be the last one I ever buy.

Next, the Red Sox. They waited until the 21st century to win the World Series, but they’ve done it not once, not twice, but three times now. I am not making this up.

Fourth, we’ve never been back to the moon. We’ve never even tried. We built this glorious space station in the 1990’s that orbits the earth, but we can only get there now if the Russians agree to take us on one of their space rockets.

And speaking of the Russians, we won the Cold War. Containment worked. The Soviet Union collapsed of its own sclerosis in the ten years after your earthly death. But that doesn’t mean peace reigneth. There’s a real sense in 2014 of a world spinning out of control.

Sixth, we have a black President. No, really. Well, to be precise, he’s our first mixed-race President. His mother was white, but his father was a black Marxist from Kenya. Yeah, it’s a long story.

Next, handwriting and penmanship are lost arts. About as important as Morse code or scrimshaw carving in your day. We type everything. The only thing I can write in script any more is my signature.

Eighth, gay marriage is now legal in many places and it looks like it will soon be legal in every state. It all happened with the speed of summer lightning through unelected judges.

Ninth, we’ve basically achieved energy independence. Another one of those things that happened practically overnight. Some new technology called fracking. We’re awash in oil and gas after decades of thinking we were running out.

You’d probably be surprised at how I’ve turned out. I own a small business and I married a woman who inherited a house on Nantucket. I know, unbelievable. You would love her. We have two great kids. One named after you. I would give anything if you could meet them.

But, sometimes, when I look in the mirror, I could swear it’s you looking back at me. So, maybe you have met them. I’m not sure of many things, but I am sure of this – there is an eternity and it is both stranger and more glorious than I can imagine.

Happy Father’s Day Dad.  God bless. I sure miss you.

Wendall Winn Joins Virginia Wills, Trusts & Estates

Wendall L. Winn, Jr., Attorney Charlottesville
Wendall L. Winn, Jr., Attorney

I am pleased to announce that on June 1, 2014 my good friend Wendall L. Winn, Jr. joined Virginia Wills, Trusts & Estates in an “of counsel” capacity.

I have known and admired Wendall since 1980, when he came to Charlottesville to practice law and I was a law student. He was an important professional mentor early in my career and has remained a trusted friend and confidant.

Like me, Wendall practices in the area of wills, trusts, probate, and trust administration. Unlike me, he is a lifelong Virginian, having degrees from Norfolk Academy, Washington & Lee University, and the University of Virginia School of Law. Wendall has been recognized in the publication Best Lawyers in America in the area of Trusts & Estates.

Non-lawyers might wonder what “of counsel” means. Strictly speaking, it is more defined by what it is not. An attorney who is “of counsel” is neither a partner, an owner, nor an employee in a law firm.  More information is available here.

Ten Years

January 1, 2014 will mark ten years since I took the bold step (for me) of starting my own law firm.  To paraphrase Daniel Webster, it is a small law firm, but there are those who love it.  I am grateful to many many people who have helped me not only stay in business, but prosper.

Clients the men, women and families in Central Virginia who have entrusted sensitive matters to our care. Without your confidence in me and my staff, my law firm would not have lasted even one year.  Serving you – and serving you well – is foremost in our minds every day.

Co-WorkersCarolyn, Bernadette, Liz, and especially Nancy, who has been with me from the very first day.  I appreciate each one of you and your commitment to excellence.  The esteem with which we are held by our clients and by other professionals in our community speaks as much to your competence and standards as to my own. And Elizabeth, who designed my letterhead and my website, who places my advertising, and so much more.

Financial Professionals the investment advisors, accountants, and other financial professionals who recommend me to those in need of our services. It is a risk to recommend an estate planning attorney to a trusted friend or client.  I appreciate the implicit compliment that comes with any such recommendation. I never take it for granted. So thanks Michael, David, Yvonne, Mike, Jerry, Wade, Kimberlee, Chris, Jeff, and many others.

Other Attorneys C.S. Lewis once wrote that “if in your working hours you make the work your end, you will presently find yourself all unawares inside the only circle in your profession that really matters. You will be one of the sound craftsmen, and other sound craftsmen will know it.” I’ve longed to be such a craftsman. There are several attorneys who have befriended and encouraged me, shared their forms and their practice tips, helping a sole practitioner like me to become a sound craftsmen. Thanks to Mark, Jim, Barbara, Jay, John, Wendall, David, Frank, and Derek.

Thank you Jane for your faith in me … and a million other things. And God in Heaven, may I always be your servant first. Except the Lord keep the city, your estate planning attorney waketh but in vain.