Making It Easier to Talk about Advance Care Planning

By Scott Bane

I have family members who believe that if they talk about end-of-life issues, they will hasten death. They resolutely back-up their beliefs with silence and inaction. They are not alone in this. As a general rule, most of us don’t like to think or talk about the end of our lives. Isn’t this always the way? Even if we know something is good for us or important, if it’s hard or will make us uncomfortable, we put it off.

But as a matter of public policy, collectively we as a society have decided that it’s a good thing to consider and plan for serious illness or death. As a result, all states have some form of advance care planning codified into law. Advance care planning helps people specify the kind of care they would like – or not like – in the event they are seriously ill or dying. Effective January 1, 2016, Medicare began paying medical professionals if a patient wished to have an advance care planning conversation.

Technically, advance care planning need only take place between patients, their families, and medical professionals. But since drafting legally-binding paperwork is involved, lawyers have historically stood at the threshold to this planning process.  Ideally, a conversation between a lawyer and his or her client will focus on the patient’s values, goals, and wishes.  The lawyer then documents these values and goals by creating a health care proxy, living will, and/or health care power of attorney.

Advance care planning is always important, but it becomes even more important as one ages or is living with chronic illness. Still, only about a third of adults have completed advance care planning.  Not surprisingly, these numbers rise for older adults. Several studies put completion of advance care planning by adults age 65 and older at roughly 50 percent.

To help change this, The John A. Hartford Foundation made a grant to the American Bar Association – Commission on Law and Aging. In 2018, the ABA Commission on Law and Aging sponsored an expert summit at which legal and medical experts drafted a practical, step-by-step guide for lawyers to help them guide their clients through advance care planning. The resulting document Advance Directives:  Counseling Guide for Lawyers was released on October 17, 2018. The President of The John A. Hartford Foundation Terry Fulmer later discussed the guide in an article published by Next Avenue.

Now comes the hard part of actually getting the Guide into the hands of lawyers who will use it. The ABA Commission on Law and Aging and its partner organizations on this project, such as the American Academy of Hospice and Palliative Medicine, are reaching out to legal and medical publications, as well as radio and social media to promote the Guide. We know that it takes sustained effort over a long time in order to actually change practice.  To that end, the ABA Commission on Law and Aging also plans to distribute the guide to state and local bar associations, as well as to medical and legal partnerships around the country.

Recognizing the critical role the legal education plays in shaping practice, the ABA Commission on Law and Aging will also put the guide into the hands of legal educators to use in elder law clinics and in continuing legal education courses. It’s hard to change practice, but given the reach and prestige of the ABA Commission on Law and Aging, its partner organizations, and its allies including members of the American Society on Aging, this project has great likelihood to shift practice for the better regarding advance directives for older adults.

Scott Bane, JD, MPA, is a recent graduate of CUNY School of Law. He joined the staff of The John A. Hartford Foundation in New York City as a program officer in September 2018. Visit johnahartford.org for more information.

Other Advanced Care Planning Resources from Advance Directives: Counseling Guide for Lawyers:

For additional resources, see this section in the Guide.