“If Only . . .”: Why You Owe it to Yourself and Your Family to Execute an Advance Medical Directive
By John J. Campbell, Esq., CELA
An ElderCare Matters Partner
Terri Schiavo was only 26 years old in 1990, when her heart stopped as the result of an eating disorder. Terri suffered serious brain damage that left her in a persistent vegetative state with little, if any, hope of recovery. Terri could breathe on her own, but required artificial nourishment and hydration because she could not swallow. Terri’s husband believed that Terri would not want to continue living in that state, so he sought to have her feeding tube removed. Terri’s parents believed that Terri would want to continue living in the hope that someday she could be cured.
And so the ordeal began. Terri’s husband and parents began litigating over Terri’s fate in 1998 in the Florida Courts. Surely, you or someone you know has read about it in the papers or has heard about it on the evening news over the past several years. As of the writing of this article in January, 2005, that litigation rages on.
In the interim, there were trials, hearings and appeals to determine whether Terri would want to continue receiving medical treatment merely intended to keep her alive without a reasonable chance of recovery or cure. Finally, the Florida Supreme Court entered an order in 2003, directing that Terri’s feeding tube be removed.
Within a week, Governor Jeb Bush successfully lobbied the Florida legislature to pass “Terri’s Law”, a special law directed specifically at Terri’s case, requiring that her feeding tube be reinserted. That law was successfully challenged in the Florida courts, ultimately resulting in a holding by the Florida Supreme Court that the law was unconstitutional. On January 24, 2005, the United States Supreme Court declined to hear the appeal from the Florida Supreme Court’s final decision.
Terri’s law is no more. The battle is over, but not the war. Motions and appeals are still pending in the Florida courts that must be resolved before the final outcome is known. In the meantime, Terri continues in her persistent vegetative state, kept alive by artificial nourishment and hydration.
It seems that everyone involved has an opinion or belief as to what Terri would have wanted. Surely, all of those persons are well-meaning and believe that they know Terri’s wishes and are looking after her best interests. However, in all the arguments before all the courts, in all the pleadings and briefs, there is one opinion that has not been and probably never will be expressed – Terri’s. Ironically, the one voice that could silence all of the controversy and speculation once and for all cannot speak.
If only Terri had executed a living will while she was still competent, her family might have been spared 7 years of litigation and all of the expense, stress and heartbreak that has gone along with it.
You and every competent adult in the United States have a legal right to refuse unwanted medical treatment. This means you can accept, question, reject, or withdraw any medical procedures or treatments offered to you.
If you become incapacitated (unable to make decisions), decisions concerning your medical treatment may be made by another person for you. If you execute an advance medical directive while you still have the legal capacity to do so, that directive would provide guidance to the person making those decisions. The directive might even determine who would make those decisions for you. However, if you become incapacitated and have not executed an advance medical directive, you and your loved ones could very well find themselves having to resort to the courts.
There are two legal documents in virtually every state that allow you to make advance medical directives: the Living Will and the Medical Durable Power of Attorney. You can take affirmative steps now to preserve your right to make medical decisions in case you later become incapacitated.
A “Living Will” is a document which says that, if you are terminally ill or injured and unconscious, comatose or incompetent, you do not want to be kept alive by medical procedures which merely postpone the moment of death. Although a Living Will is very limited in scope, it is nonetheless a powerful statement of your intent.
A Living Will may be executed by any competent adult who is eighteen (18) years of age or older. The will must be in writing, signed by you or signed by another in your presence and at your request. The signing must be in the presence of at least two witnesses, who must also sign. A witness cannot be an heir or one who stands to inherit, and cannot be a doctor, nurse, or other employee of the attending physician or treating facility. You may revoke the Living Will at any time: orally, in writing, or by burning, tearing, canceling, obliterating, or destroying it.
Once the Living Will is executed, it can be applied only in restricted situations. You must be certified as being in a terminal condition by a physician (by two (2) physicians in some states); have been unconscious, comatose or incompetent for the time specified in your state’s Living Will statute; and you usually cannot be pregnant. The physician must give notice to your nearest family members and wait a statutorily prescribed period of time, usually 48 hours, after certification for any response. If there is an objection, a guardian is appointed for you by the court and a hearing is held. After the foregoing procedure has been followed, with court permission the physician may withhold life support.
Withholding life support does not normally include withholding pain medication. Usually, you may choose in the Living Will whether withholding life support includes withholding artificial nourishment.
Your attending physician must honor the directives of the Living Will or relinquish your care to another physician who will. The statute specifically states that death due to compliance with the Living Will is not suicide or homicide.
A Living Will only applies in situations where death is imminent. It does not apply where death is not imminent, but you are unable to make medical decisions for yourself. Because a Living Will is so limited in application and does not appoint an agent or surrogate on your behalf, it is not sufficient by itself to cover all types of medical decisions. It is far better to also execute a Medical Durable Power of Attorney.
MEDICAL DURABLE POWER OF ATTORNEY
A Medical Durable Power of Attorney (MDPOA) appoints an agent to speak for you about medical treatment decisions when you cannot. An MDPOA has much wider application than a Living Will because it does not require that you have a terminal condition. There is also much more flexibility in an MDPOA because you can set forth, in your own words, your concerns about “quality of life” issues and other specific wishes about your care. A Medical Durable Power of Attorney can also incorporate Living Will provisions or give your agent specific authority to enforce the terms of your Living Will.
In some states, such as Colorado, health care providers are required to comply first with your wishes, then the statements in a Living Will if your wishes cannot be expressed, and finally the decisions of your agent under an MDPOA. Health care providers are protected from any liability for either following your wishes as stated in a Living Will or following the instructions of an agent under an MDPOA.
A previously executed Living Will could take precedence over an MDPOA. This means that a previously executed Living Will could nullify the authority given to an agent under an MDPOA in any situation where the Living Will would apply. To avoid this problem, it is important that your MDPOA specifically refer to your Living Will and make it clear that your agent has authority to make decisions according to the provisions in your Living Will.
The laws of every state provide some means to create an advance medical directive. Whether you choose to execute a Living Will, a Medical Durable Power of Attorney, or both, it could turn out to be one of the most important choices you have ever made. It is your best chance in a situation where you cannot speak for yourself to ensure that your voice is heard regarding what medical care you wish to receive or decline.
Advance medical directives are among the most powerful legal documents you can create. However, your advance medical directive will be useless if your doctor or medical facility is not aware of its existence. Keep your original Living Will and Medical Durable Power of Attorney in a safe place – preferably a safe deposit box. Make certain that you provide copies of those documents to your primary care physician, to any other physician who treats you and to any hospital or medical facility where you might seek and receive care.
You should also take time to discuss the contents of your advance medical directives with your family and friends. You should especially discuss your directives with anyone whom you may appoint as your agent under an MDPOA. The more thoroughly you make your wishes known, the better chance your wishes will be followed if you are incapacitated.
You owe it to yourself and your loved ones to consider creating an advance medical directive, regardless of your age or your current health. Unexpected tragedies can and often do happen without any warning. If something happens to you, would you want to leave your family and friends wondering: “If only. . .”?
As it turned out, the war was indeed not over. In February, 2005, Judge Greer, the Probate Judge in Florida with jurisdiction over Terri’s guardianship, ruled on all pending motions and ordered Terri’s artificial nourishment and hydration to be discontinued on March 18, 2005. What ensued over the next month was simply incredible.
Protesters began to gather outside the hospice where Terri was residing. Media coverage intensified. Politicians, religious leaders, doctors, medical ethicists, entertainers and others were quick to voice their opinions on the removal of Terri’s artificial nourishment and hydration. The result was a polarized and bitter national debate that rose to fever pitch as the court’s March 18 deadline grew nearer.
On March 16, 2005, the U.S. House of Representatives passed a bill directed at preventing the removal of Terri’s feeding tube. The following day, the Senate passed its own version. Unable to agree on the contents of the bill, Congress declared on March 18 that it was instituting a congressional investigation and issued a subpoena to Terri, requiring her to appear before Congress and testify. Subpoenas were also issued to the personnel at Terri’s hospice, directing them not to carry out the court ordered removal of Terri’s feeding tube.
In issuing the subpoenas, Congress was attempting to invoke a federal law providing protection for congressional witnesses. The strategy did not succeed. Judge Greer immediately ordered that the congressional subpoenas be disregarded. The U.S. Supreme Court declined to intervene on the motion of Congress and allowed Judge Greer’s ruling to stand. On Friday, March 18, 2005, Terri’s feeding tube was removed for the third time since 2001.
On Sunday, March 20, the U.S. Senate held an emergency session which resulted in a bill granting jurisdiction to the federal courts to review Terri’s case to determine whether she had received adequate due process protections in the Florida probate proceeding. The House passed the bill just after midnight the next morning and the bill was rushed to President Bush, who immediately signed the bill into law.
Terri’s parents filed suit in the U.S. District Court in Florida later that same day. They also asked the Court to enter an injunction to require the reinsertion of Terri’s feeding tube pending the outcome of the case. On March 22, 2005, a U.S. District Judge denied the injunction, stating that Terri’s parents had failed to demonstrate the likelihood that they could prevail in the case on the merits. Terri’s parents filed an emergency appeal in the U.S. 11th Circuit Court of Appeals.
On March 23, a 3 judge panel of the 11th Circuit declined to overturn the District Court’s ruling. Terri’s parents immediately asked for a review by the full Court, which promptly upheld the decision of the panel. Terri’s parents immediately appealed to the U.S. Supreme Court. On March 24, the Supreme Court declined to take the case.
On March 25, Terri’s family returned to the U.S. District Court in Florida with a new motion to reinsert Terri’s feeding tube. The motion was denied that day. Another emergency appeal to the 11th Circuit by Terri’s parents on March 25 failed.
On Saturday, March 26, Terri’s family filed a new motion before Judge Greer in the Probate Court, claiming that Terri had tried to say “I want to live” just before her feeding tube was removed. Judge Greer rejected the motion. Another emergency appeal, this time to the Florida Supreme Court, was similarly rejected that afternoon. It had been 8 days since Terri’s feeding tube was removed.
In the meantime, the protesters outside Terri’s hospice became more and more active. In all, at least 48 were arrested trying to force their way into the hospice with offerings of bread and water. One, who had traveled across country heavily armed and intending to “rescue” Terri, was arrested before he could carry out his plans.
On Monday, March 28, the 11th Circuit Court of Appeals surprisingly entered an order permitting Terri’s parents to file another appeal. However, the Court denied the appeal itself the next day. Once more, Terri’s parents attempted to invoke the authority of the U.S. Supreme Court. The Court rejected their attempt on Wednesday, March 30, apparently exhausting any remaining legal options that Terri’s parents had.
On Thursday morning, March 31, 2005, 13 days after the court-ordered removal of artificial nourishment and hydration, Terri Schiavo died. May she finally rest in peace.
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