The following is adapted from Unthinkable.
My mother was hit and killed by a concrete truck while crossing a street near her home. Her death was an unthinkable tragedy, and my family is far from alone in suffering such a loss. But in my professional life as a personal injury lawyer, we encounter many more families who are coping with the catastrophic injury of a loved one rather than their death.
In terms of practical challenges, a catastrophic injury involving a loved one raises its own problems and concerns. You have a potentially long road ahead, especially when it comes to helping them heal from their injuries. To help with that, let’s look at five steps you can take to navigate the medical decisions you’ll be faced with, especially if they are incapacitated and can’t make decisions about their care for themselves.
Before we dive in, though, I want to point out one very important fact: as terrible as catastrophic injury is, the person you love is still here, among the living. It doesn’t necessarily make it better or easier in the moment or thereafter—but they’re here, and thank God for that.
#1: Determine if They Can Make Medical Decisions
The first questions on a family’s mind after a loved one has suffered a catastrophic injury are almost always medical: what’s the nature of their injuries, what’s their prognosis and treatment choices, and when (or whether) can they go home?
At the heart of these questions, and one potentially even more pressing, is another one: given the nature of their injuries, is your loved one capable of making medical decisions or not? In the short run, they might not be able to, even in a case with a promising prognosis. They could well be in a hospital’s Intensive Care Unit, unconscious, in a medically induced coma, or intubated to help them breathe.
If they can make their own decisions, of course, they should. (If you’re worried about their capacity to make decisions and they insist on it, you should discuss your concern with their doctors.)
But what if they can’t make decisions? Then, you’ll need to turn to their advanced directive, assuming they have one.
#2: Find Their Advanced Directive
Advanced directives, also known as living wills, aren’t cookie cutter—but in general, they serve to capture your loved one’s wishes in the event they aren’t able to make their own medical decisions. Their purpose is to spare family members the burden of making life-and-death decisions for someone else while in a time of turmoil and tremendous pressure.
Advanced directives can’t address every medical situation, but they should address the issues that are most important to your loved one. They’re a binding legal document, just like a will. If your doctors have a copy of your loved one’s advanced directive, they are obligated to follow it.
That’s why the first thing the medical staff will want to know is if your loved one has an advanced directive. If you don’t know the answer, you’ll have to look in the same places you’d hunt for their actual will or a life insurance policy: their files, their desk drawers, and their safe. In many cases, you will find these documents in the same place.
An advanced directive could also be filed with their attorney or their primary care doctor. If they were conscious when they arrived at the hospital and needed immediate surgery, the hospital staff may have asked them to complete an advanced directive before putting them under.
#3: Determine Their Designated Decision Makers
Usually—though not always—an advanced directive will also include a document called a “durable power of attorney for healthcare.” It may go by a different name, but its purpose is to allow your loved one to appoint someone to make medical decisions if they’re unable to do so themselves. They may even name a backup.
Put the documents together, and you effectively have a binding statement from your loved one indicating under what circumstances they want medical care to stop (or just the opposite) and, in all other circumstances, the spouse, parent, brother, sister, child, or whomever they want to make medical decisions for them.
Someone who creates the first two documents may also create a third: a revocable living trust. In essence, it will appoint someone else to make financial decisions on their behalf if they become incapacitated.
It may require a doctor to declare them incapacitated before taking effect, and once your loved one recovers, the authorization ends. But while it’s in force, the person they’ve designated has the authority to access their accounts, pay their bills, and handle other financial matters that arise.
#4: Designate Who’s In Charge
If your loved one has prepared all these documents, bless them. But what if they haven’t? Typically, the doctors and the staff at the hospital will work with the family to make medical decisions for your loved one. As part of that, they’ll encourage the family to designate a decision-maker or decision-makers with whom they’ll consult.
It is possible to go to probate court to have a judge designate a medical decision-maker on behalf of your loved one. However, think of that as a last resort. It’s always better to work together as a family if you can.
Whether your loved one had an advanced directive or not, your interaction with the doctors and staff often begins with what’s called a “family meeting.” It may not happen until your loved one’s condition is stabilized. And if your loved one is likely to be released quickly or transferred somewhere else, it may not happen at all.
If it hasn’t happened within 24 to 48 hours after your loved one is stabilized, though, I’d strongly urge you to request a family meeting yourself if you have any questions about their condition and the plan for treatment. It’s especially important if there is no advanced directive to guide everyone involved.
#5: Hold a Family Meeting
A family meeting is a structured gathering. It’s not typically held in the Intensive Care Unit or at your loved one’s bedside. Instead, the meeting may be held in a nearby conference room. The leaders of the medical team will attend along with immediate family members who are adults.
The caregivers will identify themselves, provide a summary of your loved one’s situation and their medical recommendations, and assess your desire for information and how involved you wish to be. They will also answer whatever questions you have.
If you haven’t already, the meeting is a great opportunity for you to designate a family member the doctors and staff should reach out to first and a backup. You can ask for their names and contact information—a number of specialists may be involved—and discuss who will be providing you with updates and choices to be made and how frequently.
It can be a difficult and emotional meeting, but it can also be very empowering. Without it, you’ll be left watching as waves of people come and go as they care for your loved one, without any idea of what they’re doing or the seriousness of the situation.
Where There is Hope, There are Possibilities
As hard as it is to navigate the medical process when it comes to catastrophic injury, I want to say this: I am continually amazed by the willpower I see in victims of catastrophic injury events and their families and where it can lead, regardless of how terrible circumstances may be at the beginning. There are no guarantees. But where there is hope, there are possibilities.
The road ahead may be long, but I encourage you to remain hopeful. In the years I have spent working with families, I have seen some remarkable recovery stories. Commit to taking one day and one step at a time, and in most cases, things will get better. That doesn’t mean life is ever going to be the same, but it will still be worth the trip.
For more advice on what steps to take if you or a loved one are catastrophically injured, you can find Unthinkable on Amazon.
A founding partner of the law firm Bachus Schanker, Kyle Bachus limits his practice to representing individuals and families in catastrophic injury and wrongful death cases nationwide. For more information, visit KyleBachus.com.