Advance Medical Directives are important estate planning documents. Sometimes a person can have mental incapacity such that they cannot make their own medical decisions, but at the same time still be determined enough to thwart their best interests. It’s a uniquely challenging circumstance. It is possible, however, to ensure someone is permitted to override the poor decision-making (brought on by the incapacity). This can be accomplished, with the aid of an estate planning attorney, by crafting an Advance Medical Directives containing what is referred to as a “Ulysses Clause.”
Ulysses—the Roman name for the Greek hero Odysseus, protagonist of the Odyssey by Homer—is famous for a great many things, such as coming up with the Trojan Horse (which won the Trojan War for the assembled Greek army), and facing the “rock-and-hard-place” scenario of the six-headed sailor-devouring Scylla and the ship-eating whirlpool Charybdis. But perhaps his most famous exploit, the one from which the “Ulysses clause” earns its name, took place when his ship was to pass the island of the Sirens, creatures who sang so beautifully that sailors could not resist doing everything they could to go to them—and consequently to shipwreck themselves upon the rocks for the Sirens to consume. Ulysses wanted to hear this song, but not to die. So he had his sailors bind him to the mast of the ship, and instructed them that, no matter what he said or did while passing the island, the men absolutely were not to untie him. The men then plugged their ears with wax so as to not hear the Sirens’ song. Sure enough, as they passed the island, Ulysses roared at his men and begged them to release him, but they stuck to the order he made before passing by the island, made the choice for him in accord with his previously-expressed wishes, and everyone escaped this particular adventure with their lives intact.
Just so, people sometimes see the “Siren song” of incapacity looming on the horizon. When one cannot understand the decisions that need to be made in order to properly provide self-care, then the decisions themselves are suspect—just as Ulysses’s pleas to release him from the mast were clearly not to be trusted. Crafty Ulysses knew beforehand that he was likely to make the wrong decision while under the influence of something that disturbed his reason, so with his reasoning mind he made his wiser wishes clear while he still could.
This is the precise function of the Ulysses Clause in an Advance Medical Directive.
Forethought is, of course, a primary characteristic of any Advance Medical Directive (that’s what the “advance” is for). The whole point of them is to make sure that, should the creator of the Directive enter a state of incapacity, their decisions will be known and, to the extent allowable by law, followed. The Ulysses Clause is for a very specific scenario: where a person, still of right mind, decides to give their decision-making power to someone else during the period of time when they are incapacitated.
A Ulysses Clause is not inserted into an Advance Medical Directive lightly. Our society highly values autonomy. It had to be Ulysses’s own order that he not be released from the mast. Otherwise, as the sailors’ captain, his orders were supposed to be followed at all times—no matter the risk to his life or to those of everyone aboard. Virginia law does what it can to prevent a Ulysses Clause from being enacted against the wishes of the person making the Directive—even to the extent of requiring that a licensed provider (such as a licensed physician, licensed clinical psychologist, and so forth) sign a statement attesting that, in their professional opinion, the person including the Ulysses Clause in their Directive is doing so with a clear understanding of the decision to do so—including how much power is being handed to their agent and what that may mean down the road.
What’s more, the Ulysses Clause has clear legal limitations. A person’s agent is not permitted to discontinue or withhold treatment for prolonging life over the objection of the person whose life is at stake. And in order for a treatment to be taken over the present objection of the person who made the Directive, their doctor must state that the course of treatment being objected to is medically appropriate.
All of this must be carefully choreographed to ensure that a person gets what they want while in their right mind. We can help with that.
Promise Law Can Help With Advance Medical Directives
Attend one of Promise Law’s free estate planning workshops to learn about this and other aspects of creating an estate plan. These workshops provide a great foundation of information that everyone needs to make sound planning decisions—right now. Moreover, if you attend a workshop, you also get a complimentary consultation.
