As a physician who conducts research on decision-making, I have been asked many times: What does behavioral economics teach us about the role of living wills in medical care? Famed behavioral economist Dick Thaler recently opined on this topic in The New York Times, stating his support for a “requirement that all patients meet with their doctors or trained end-of-life counselors and prepare living wills.” He believes patients will be better off if they “talk about the trade-offs and make some choices before they are incapable of doing so.”
I respect Thaler a great deal. His thinking and research on how to promote retirement saving is an absolutely brilliant line of work, and perhaps one of the best examples of how behavioral economic discoveries can improve people’s lives. I wish he had been chosen to share the Nobel Prize with Danny Kahneman, when the prize was awarded for Kahneman’s (and Tversky’s) work laying the foundation for behavioral economics. I think Thaler is that important of a figure in the field.
But his enthusiastic embrace of living wills is surprisingly naïve. He should have known better. For starters, Thaler is one of the people who have discovered some of the psychological forces that lead people to make bad decisions. Give someone a complicated choice, with lots of trade-offs, and Thaler could fill the semester explaining how and why that decision is likely to go wrong. Indeed, early developers of the living will went to elaborate lengths to create documents that describe the exact situations patients might encounter in the future. In order to account for all the possible scenarios, some of these forms look more complicated than a wealthy person’s tax returns. No one with a basic understanding of human psychology could think these forms would lead to rational decision-making. No one familiar with the problem of “choice overload” could believe that reflection on so many possible futures, and some impossible choices, would somehow capture people’s true preferences.
To make matters worse, the trade-offs relevant to most living wills involve powerfully emotional and often strikingly unfamiliar choices. People must imagine what life is like with dementia or metastatic cancer or kidney failure. A slew of studies, including a number I have collaborated on with George Loewenstein and Dylan Smith, have shown that people are notoriously bad at predicting what life will be like with these health conditions. We don’t always know what we will want in our futures. My paternal grandmother said she would rather be dead than live in a nursing home, and then enjoyed her time in the nursing home so much after she moved in that she wondered what took us so long to find her a room there.
To make matters even worse, Thaler places too much trust in the ability of physicians to converse with their patients about this topic. Asking physicians to explain complicated hypothetical decisions is expecting more out of them than I think most physicians can deliver. Myself included. Early in my clinical career, I tried to engage patients in these conversations about living wills. I rarely found these conversations helpful, especially compared to the many other topics I could have addressed with them during our time together. Indeed, Angie Fagerlin and Carl Schneider wrote a devastating critique of living wills for the Hastings Center report a few years ago, a review that relied heavily on the behavioral foibles that get in the way of good decision-making in this context.
And if these enormous challenges can be overcome – if patients can make rational decisions about unimaginable medical scenarios taking place in the unpredictable future – there are still other problems in relying on living wills to improve end-of-life decision-making. These documents rarely make it into medical charts where and when such information is needed. And the physician you talk to about your wishes is often not going to be the same one taking care of you in the hospital when those decisions present themselves.
Thaler is right that we need to do something to improve end-of-life decision-making. Indeed, overly aggressive end-of-life care is harming too many patients. Fortunately, there is a much better solution.
Everyone should make sure they’re comfortable about who will make decisions for them if they are unable to decide for themselves. Generally speaking, if you are unable to decide for yourself, the hospital personnel will turn to your next of kin – your spouse if you have one, your adult child if you are a widow or widower. But if you don’t want that next of kin to be your decision maker, or if you have multiple children and you want to make sure the doctors know which one to turn to, you need to get yourself a Durable Power Of Attorney for Healthcare. I know that is a clunky legalistic phrase. But here is what it means. It means you are telling your physician who you want making decisions for you if you are not able to participate in those decisions. If you are delirious or unconscious because of a health problem, your doctors will know who they can talk to to make decisions about your health care.
How do you go about getting this durable power? You could simply click on the following link, print out the first page, fill it out and sign it. If you want to get fancy, you can get someone to notarize it. But you don’t need a lawyer. You don’t need to pay anyone to help you. Just put it in writing, and give your physician a copy.
Given the impossibility of accurately anticipating unforeseen decisions, and the difficulties inherent in knowing what any of us would want in these unpredictable situations, your best bet is to spend the scarce time you have in your doctor’s office making sure the physician knows who you trust to make these decisions. And make sure everyone in your family knows who you have chosen. This is not always going to be an easy conversation. But it is much better to have that conversation now, than to leave your relatives to fight over your best interests when you are no longer able to communicate.
To summarize: Get yourself a Durable Power Of Attorney for Healthcare and make sure your loved ones know who you have chosen to be your decision maker.
**Previously posted on Forbes**