How to avoid a Schiavo scenario
In the months since the Terri Schiavo case drew national attention to living wills - or advance healthcare directives - legal experts have stressed the importance of such documents in reducing the likelihood of disputes over a caregiver's course of action should the patient lack the capacity to convey his or her own wishes.
Some 60 percent of Americans do not have living wills, according to a Gallup Tuesday Briefing analysis released June 7. Creating one is relatively uncomplicated, even if anticipating the specific circumstances under which it would be used is not.
The important elements of a living will include unambiguous language and close attention to what the American Bar Association (ABA) calls the "formalities for completion" - signatures by the required witnesses and legal notaries. These formalities, and others, can vary by state. California, Ohio, Texas, and Vermont, for example, require the use of state statutory forms.
Perhaps most important is clarity with regard to the identity and powers of an authorized agent or proxy, says Charles Sabatino, director of the Commission on Law and Aging at the ABA in Washington. Also essential: a detailed conversation that includes an entire family as well as a primary physician or an alternative healthcare provider.
"There is no such thing as a bulletproof advance directive," says Mr. Sabatino. "Any physician can refuse to comply with it based upon a 'conscience objection.' So your greatest protection against it being ignored is to discuss what you want with both your proxy and your physician - and ideally with your other family members, too." Sabatino says individuals who are concerned that certain family members might try to impose their own wishes should consider expressly excluding them - in writing - from having any role in the decision.
(For more of Sabatino's recommendations, see below.)
To assess a few representative offerings in a crowded category, the Monitor evaluated current Windows versions of the two legal-software packages that held the greatest retail market shares in 2004 (Perfect Attorney and WILLPower), according to NPD Group, a sales-tracking firm in Port Jervis, N.Y.
Added for comparison: WillMaker, a product we consistently encountered during recent trips to retail outlets, including big-box stores and one wholesale club.
The Monitor tested several consumer options for creating living wills - three software programs and two websites - comparing ease of use and other factors.
To sample Internet offerings - where consumer options are broader still - we searched for both free and fee-based sites and then contacted Nielsen/NetRatings and comScore Media Metrix to help determine which were the most heavily trafficked in recent months (Legalzoom.com was the only pay site for which both firms had page-view statistics).
The free site we reviewed was included to provide readers with at least one no-cost option.
We purchased, installed, and ran the Windows programs (WILLPower also runs on Macintosh OSX) and surfed to the sites with an eye toward intuitive navigation and overall comprehensiveness. Some free sites that we explored - but did not review - seemed primarily to be database-builders for marketers, requiring several levels of personal information (income, ethnic background) to unlock will kits. With each option below it took about 15 minutes to create a basic living will.
$29.95 before $10 mail-in rebate
Installation & interface
Program is simple to navigate, but offers no readily apparent way to update the program via the Internet. A link to the website initially led to the company's tax products. On the website, a pulldown menu of products did not include WILLPower 2005.
Depth of background information provided
A comprehensive "profile" function allows user to enter personal information once. It then creates an "estate manager" database on which it can draw in drafting specific legal documents, speeding the process.
The software conducts a "document interview" in which FAQs assist the user. But legal information is limited, and two-choice toggles don't allow for much nuance. Feeding-tube options, for example, include instructions to "allow" or to "allow unless there is no brain activity." But further detail can be added before printing.
Comments
Good marks for ease of use. But the resulting basic document feels like one that could be drafted on any word processor. Lack of an obvious auto-update function is a drawback.
$49.99 before $10 mail-in rebate
Installation & interface
Quick auto-launch. Has a useful 135-page manual that includes sample documents and discussions of legal issues, with directions on how to access background on the disk. Internet update includes a reference to any previous updates by the user.
Depth of background information provided
Easy-to-navigate program offers impressive depth in several areas. Prompts include "situational" suggestions for users at various stages of life and financial status.
Includes many offers of information - from shortcuts to specific sections of the comprehensive legal guide that is included on the disk, to FAQs at the Nolo website. Legal detail even includes a section on overlap between state laws and the US Constitution. Medical detail includes full explanations of specific procedures.
Comments
Upfront auto update is reassuring, as are deep informational prompts that are probably worth the added cost of the package in time saved doing research. Final document cannot readily be customized through a basic edit function but, after the degree of choice offered, that seems unnecessary. Resulting document suggests legal heft.
$19.99
Installation & interface
First of four disks allows for easy auto install. Keep the other disks on hand; program will ask for them for video tutorials, for example. Can be updated online.
Depth of background information provided
It doesn't take long to find advance-directive templates, either state statutory forms or suggested "uniform" living wills. But walk-through prompts are unhelpful. For example, a yes or no choice on the "no-hydration clause" comes with one line of explanation essentially equating hydration with water. The only clear help keys on the screen at that point: a financial calculator and a calendar. The 2-1/2-minute Windows Media video clip hung up several times and was not particularly instructive.
Comments
This "legal suite" product offers some 4,000 documents, but its overall feel suggests breadth over depth. Final document can be easily line edited prior to printing, and users might wish to do so; such wording as "death is as much a reality as birth" seem gratuitous.
Free
Installation & interface
Name and e-mail address are required to register - mailing address is optional. Site takes user through state-based forms as downloadable PDFs.
Depth of background information provided
Also available as PDFs are detailed instructions and guidelines, as well as referrals to the website and toll-free help line of the site's sponsor, Caring Connections, a program of the National Hospice and Palliative Care Organization.
Comments
Site inspires confidence, offering thought-provoking background and adding the promise of free expertise. Sole drawback might be the editing option for PDFs: crossing out unwanted clauses prior to signatures.
$39 for standard living will, including shipping the finished form by first-class mail
Installation & interface
Easy-to-find pull-down menu leads user to living wills. Explanations are clear and, while answer options are limited, several allow space for additional instructions, which Legalzoom staff will review. (Space is given, for example, for users to limit the powers of a chosen proxy.)
Depth of background information provided
A "living wills library" offers basic information, but the viewer is interrupted at each page view by a pitch urging the user to choose a package and begin.
Comments
A quick and easy process. It is not immediately clear how to save work to finish later. But the site does save work when the user quits a browser. E-mail messages update the user on stages of processing a living will composed online. A customer-service representative promptly called when e-mailed about slow delivery, offering to resend.
An increasing number of attorneys now offer toincorporateadvance medical directives into the broader estate-planning process, experts say. A lawyer's prompts can be useful in shaping such directives, or living wills.
Individuals who choose the self-service route should examine more than one software- or Web-generated form, says Charles Sabatino, director of the American Bar Association's Commission on Law and Aging in Washington, D.C. "In the language and recommendations of sample forms there are similarities, but also a great deal of variation," he says. He recommends the ABA's free living-will online toolkit (www.abanet.org/aging).
The Monitor spoke with Mr. Sabatino about other living-will considerations:
Whether to involve a lawyer
"You can make a legally valid advance directive pretty safely on your own. The bigger danger is its practical ineffectiveness. Advance directives are only worth the discussion they're based upon. And if there's no discussion ... then they're not going to be worth the paper they're written on."
Be specific
"If you look at the standard language of living wills, particularly the statutory ones, they tend to be too general to provide much guidance. If you say, 'I don't want to be treated if the treatment will only prolong the dying process,' a common phrase in standard forms, what does that mean? If you're in your 70s and ... you know you're going to be dealing with issues around ventilators, you might want to be specific about that."
When to revisit a living will
"It's time to rethink what you want whenever what I call one of the 'five Ds' occurs: a new decade of your life (30, 40, 50, at least); if you experience the death of a family member or friend; divorce; serious diagnosis - some new condition; [or] a serious decline in your condition."
Issues often overlooked
"[Giving instruction] for anatomical gifts is often overlooked in standard forms.... Issues around pregnancy can be important, because in most states your form isn't valid if you're pregnant, unless you have stated otherwise. Issues around giving your agent authority to consent to experimental treatment is [also] not typically addressed, particularly if the experimental treatment ... may be pure research."
