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Estate Planning
Long Term Care
End-of-Life Decisions: Legal Protections, Pitfalls, and Prevention of Litigation
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Veronica DarlingGuest Expert: Veronica Darling
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🔑 Key Takeaways for Advisors1. Legal Foundations and Common Tools

Advanced Directives and Living Wills: Essential legal ...

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Discussions & Comments

missy@financialexpertsnetwork.com 9 months 2 weeks ago
A few comments from listeners when they were asked what the learned from the webinar:

Advance healthcare directives may be void for pregnant women; certain hospice facilities may refuse to engage in medical aid in dying; and I had never considered checking life insurance documents! I learned ALL of the things. This was the best webinar yet! And I love your webinars, thank you!
- Tanisha C.

I "got" the major point that Veronica made - that just filling out the advanced care directive is NOT enough. And the subtitle: dying a death you want, in out culture and time, is as exhausting and complex as living.
- Andrea M.

Learned a few new conversations topics by defining new words I did not know before. Better understanding of how to position the conversation.
- Sean K.

The nuance of how capacity plays a role in using either Advance Directives or MAID in planning, how Advance Directives can be revoked verbally.
- Michelle F.

missy@financia…

Wed, 06/25/2025 - 11:53

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A few comments from listeners when they were asked what the learned from the webinar:

Advance healthcare directives may be void for pregnant women; certain hospice facilities may refuse to engage in medical aid in dying; and I had never considered checking life insurance documents! I learned ALL of the things. This was the best webinar yet! And I love your webinars, thank you!
- Tanisha C.

I "got" the major point that Veronica made - that just filling out the advanced care directive is NOT enough. And the subtitle: dying a death you want, in out culture and time, is as exhausting and complex as living.
- Andrea M.

Learned a few new conversations topics by defining new words I did not know before. Better understanding of how to position the conversation.
- Sean K.

The nuance of how capacity plays a role in using either Advance Directives or MAID in planning, how Advance Directives can be revoked verbally.
- Michelle F.

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Click here to Download the Following Summary

 

🔑 Key Takeaways for Advisors

1. Legal Foundations and Common Tools

  • Advanced Directives and Living Wills: Essential legal documents recognized in every U.S. state, used to outline treatment preferences. Advisors should ensure these are clearly written, witnessed, and ideally included in a state or national database (e.g., MyDirectives: mydirectives.com).

  • Healthcare Proxy Designation: It’s not enough to appoint a trusted individual—the proxy must be prepared to advocate assertively for the patient’s wishes. This role may require conflict resolution and communication with healthcare providers.

  • POLST/MOLST Forms: These are medical orders for life-sustaining treatment and vary by state. Advisors must ensure that clients in late-stage illness discuss these with their physicians. See polst.org for state-specific details.

2. Gaps in Implementation and Litigation Triggers

  • Document Disregard in Hospitals: Even with properly executed directives, hospitals sometimes ignore DNR/DNI orders—leading to unwanted interventions like intubation or resuscitation. This occurred in states like West Virginia, New Hampshire, and California.

  • Reasons for Non-Compliance:

    • Hospitals fear legal liability for not attempting resuscitation.

    • Healthcare proxies may not assertively enforce the patient’s wishes.

    • Lack of staff training or unfamiliarity with directives in emergencies.

📚 See: Journal of the American Geriatrics Society, 2020 – "Barriers to Implementing Patient Preferences for End-of-Life Care"

3. Dementia-Specific Planning

  • Cognitive Decline Considerations: Traditional directives may not hold up once cognitive capacity is lost. Patients should draft instructions while competent that address:

    • Withholding food and hydration (including "comfort feeding")

    • Preferred settings of care (home, hospice, memory care)

    • Specific triggers to initiate comfort-only care

  • Use tools like the Dementia Values & Priorities Tool from Compassion & Choices: Dementia Planning Tool

4. Voluntarily Stopping Eating and Drinking (VSED)

  • VSED is a legally recognized way to hasten death in many states, supported by palliative care. It is not equivalent to suicide.

  • Advisors should know VSED is especially relevant when medical aid in dying (MAID) is unavailable or not desired.

  • See: National Library of Medicine – Voluntarily Stopping Eating and Drinking

5. Medical Aid in Dying (MAID)

  • Legality: Available in 11+ states and D.C., with variations in procedures, residency requirements, and documentation.

  • Eligibility Requirements:

    • Terminal diagnosis (≤ 6 months prognosis)

    • Mental competence

    • Self-administration capability (i.e., swallowing or minimal aid)

  • Planning Considerations:

    • Review life insurance and estate documents for clauses excluding MAID-related deaths. Most MAID laws explicitly state that deaths are not suicides.

    • Family involvement is essential—lack of transparency raises suspicion and undermines the process.

6. Litigation Prevention

  • Common triggers:

    • Family disputes over proxy rights

    • Religious objections from institutions or family members

    • Conflicts between state law and family wishes (e.g., South Carolina’s 6-hour delay rule before an advanced directive is honored: § 44-77-30)

  • Advisors should review:

    • State-specific laws (e.g., Nevada permits withdrawal of nutrition via GI tract; West Virginia mandates oral feeding regardless of directives)

    • Client residence and facility location—state of death can impact legal jurisdiction and death certificate language.

🧠 Strategic Advice for Advisors

  • Start early: Encourage planning before diagnosis or crisis.

  • Don’t assume: Review documents regularly and update based on changes in law or health status.

  • Involve professionals: Collaborate with end-of-life counselors, estate attorneys, and palliative care providers.

  • Document everything: Have clients include letters or videos articulating their wishes in plain language.

  • Normalize the conversation: Build death literacy through proactive client education.

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