New year brings chance to have tough conversations

New Medicare rules could encourage end-of-life discussions


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Approximately 2.5 million people will die in the United States in the new year. Of that number, over three-fourths will very likely be over the age of 65. This makes Medicare the largest insurer of health care during the last year of life for an extremely large number of individuals.

In 2015, Medicare proposed payment to physicians and other qualified providers who engage in face-to-face, end-of-life care discussions. Readers may recall that a similar proposal was first made before the passage of the Affordable Care Act although it was shot down at that time after being described as allowing for the establishment of “death panels.” After many attempts to implement this measure, it appears that the final new Medicare rules will include this provision and will take this month.

Although dollar amounts for reimbursement have not yet been established, this development is encouraging. It reflects a growing recognition that having difficult end-of-life discussions with medical providers and loved ones can provide many important benefits and should be encouraged. 

All adults are encouraged to execute estate planning documents, which includes advanced directives. Advanced directives identify a decision-maker to make decisions about what kind of medical care you will receive if you are unable to make your own decisions.

Real discussions

Even if you are not elderly and suffering from cognitive decline, it is always possible that you could be in a situation in which you need someone else to make decisions for you, thus it is important not to wait until you are elderly and in crisis to execute such documents.

If you are approaching the age of 65, it is increasingly likely that at some point before you die you may suffer from dementia or a medical event that prevents you from making your own decisions.

Unfortunately, only about one-third of all adults in New Hampshire have executed such documents. And more importantly, many individuals who have taken the time to execute advanced planning documents do not understand them or have never had real discussions with loved ones about their wishes for end-of-life treatment.

These discussions can include whether to die at home and under what circumstances you should receive life-sustaining treatment. This can also mean, “Don’t perform cardiopulmonary resuscitation on me because I am elderly, and it you will likely break my ribs” or, “When I say take whatever steps are necessary to keep me alive, that includes intubation or cardiopulmonary resuscitation.”

For discussions with doctors, it can also mean having real discussions about what treatment options at end of life might look like, particularly if the patient is ill and may not recover.

When my mother was dying of throat cancer in 2015, we discussed her medical care choices with her and her doctors in order to better understand how to honor her wishes. As she began having breathing difficulty due to blood clots blocking her airway or fluid filling her lungs, she came to realize that she did not want to die in the emergency room or be placed on a respirator.

We discussed these issues with her doctor and as a family, and ultimately she realized that she was ready to end treatment and go into hospice. 

Clear direction

Without taking your time to consider what is important to you and sharing that information with the person who is designated to make your decisions, that designated decision-maker will be trying to make critical decisions that could end your life, or prolong your suffering, in a vacuum, hoping that she is making the right decisions for you.

Studies show that designated decision-makers and family members who are unaware of a patient’s wishes are more likely to experience stress, anxiety and depression. Moreover, people are far more likely to take any and all steps possible to prolong death in order to avoid guilt and fear of abandonment.

When you provide clear direction to the designated decision-maker, your family members are far more likely to feel relieved, despite their sadness over losing you, because they can be comforted in knowing that your wishes were clear and were honored.

Understandably, these can be challenging discussions. But if you can provide some direction to your loved ones and your designated decision-maker, you can take great comfort in knowing that you are helping them to help you. So consider a new year’s resolution. Begin the tough conversations. 

Andrea Daly, an attorney in the Portsmouth office of McLane Middleton, is a member of the firm’s litigation department.

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