Lessons From The Terri Schiavo Case Making Your Own Advanced Directive Decisions Can Help Avoid A Nightmare

There is no question that the Terri Schiavo case has sparked considerable attention both in the media and the public eye. Other unfortunate cases that have made it to the public are those of Nancy Cruzan and Karen Quinlan. Each of these individuals was young and had not conclusively and properly communicated her desires to family members. Therefore, each of their cases became a nightmare not only for their families, but also for themselves.

It is clear that each person should establish a Living Will or Health Care Proxy based on the state where they are living. Without this important document, the risk remains that personal wishes and desires may not be properly communicated to medical personnel, and that families may be engaged in extended litigation over the right to die or the right to live.

In Terri Schiavo’s case, there were approximately 19 court hearings held before a final determination was made, and only when she died, did the litigation end. Federal legislation was even passed to attempt to allow her family to have access to the federal courts, which normally do not take jurisdiction over a state matter.

However, the federal courts denied her the right to have access to the system inasmuch as they determined that her remedies in the state courts have been resolved through the proper legal channels.

The court was unwilling to take another look at the family issues and perspectives relative to Terri. Again, all of this could have been eliminated if she had properly signed a relatively straight-forward document designating who she wished to serve, and what she wanted or did not want in the unfortunate event of her incapacity and permanent vegetative state.

On Dec. 18, 1990, legislation was enacted in the Commonwealth of Massachusetts that allows a person to nominate and appoint another person to make medical decisions. Not to be confused with a Durable Power of Attorney, this document, called a Health Care Proxy or Durable Power of Attorney for Health Care allows a person to select another individual to have the authority in determining the course of action to be taken relative to medical procedures, or the withholding of medical treatment.

Various forms of this type of document have been reproduced and distributed to senior groups, physicians and medical institutions such as hospitals and nursing homes. While most of the form documents are acceptable in most situations, there may be a specific area that needs to be addressed in special circumstances.

It may be one’s desire to have the so-called ‘living will language’ included, which states that a person does not wish to be kept alive by heroic means. If this is the case, the person establishing the Health Care Proxy, called the principal, should be sure to have this language included specifying that these objectives should be met, as well as appointing the designated person to authorize or withhold the treatment.

This situation would occur normally only when a principal is mentally or physically disabled to the extent that he or she is unable to make informed decisions on his or her own behalf. As long as the individual is competent, he or she retains the right to make decisions relative to his or her own health care decisions.

It is important to note that it is not sufficient to have Health Care Proxy information included only in a Will, which is typically read after one dies. The Health Care Proxy should be a separate document that can be accessed in the event of an emergency. It is also important to have a conversation with close family members to make them understand one’s wishes. The person designated to make decisions in the Health Care Proxy should have a copy of the document, which can be produced quickly in a worst-case scenario.

Recently, there have been many programs to educate medical professionals and related health care providers regarding the use of Health Care Proxies. These efforts should succeed in facilitating the use of Health Care Proxies and their implementation. It is recommended that any person revising their estate plan or any person wishing to establish a Health Care Proxy should forward a signed copy of the document to their physician and medical facility, who will then have prior instructions as to the appropriate person making decisions in the unfortunate circumstance of incapacity. The document itself is not usually a technically difficult or lengthy document, but must be signed in the presence of witnesses so as to comply with the law to make it effective. Therefore, care should be taken to ensure that the document is properly prepared and signed so that its use in the future will be utilized without any problems.

Hyman G. Darling, Esq., is chairman of Bacon & Wilson’s Estate Planning and Elder Law Department. His expertise includes all areas of estate planning, probate and elder law; (413) 781-0560; harling@bacon-wilson.com.