As our aging population grows, stories of end-of-life medical treatment issues seem to appear with increasing frequency in newspapers, television reports, and discussions with friends and family.
Requests for health care decision-making documents are now a standard part of any estate planning discussion with a client and as a result trusts and estates lawyers have had to add health law as another area of expertise they are expected to provide. Keeping abreast of health law can be challenging, as the landscape has changed in important ways with New York’s 2010 enactment of the Family Health Care Decisions Act (FHCDA) and the rollout of Medical Orders for Life-Sustaining Treatment (MOLST) forms. Despite efforts to publicize these changes and educate both lawyers and the general public, trusts and estates lawyers are confronted with a client’s confusion about what they want and actually need and an array of options and forms to choose from to document a client’s wishes in a way they will be honored. Moreover, given the nature of health care issues confronting an individual over his or her lifetime, a client’s goals of care will likely change as he or she moves from wellness to managing chronic illness and to the final stages of life. This means that, just as estate planning documents need to be reviewed and updated periodically to address changes in family circumstances and law, health care documents need to be reviewed and updated as health changes. It is in part for this reason and recognition of the need for greater opportunity and flexibility that Medicare recently proposed to establish payment rates for physicians and other practitioners who engage in advance care planning with their patients.
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