Making your wishes known: Living wills not ironclad
Making your wishes known: Living wills not ironclad
Lawyers recommend power of attorney
As a 26-year-old woman, Terri Schiavo likely never imagined she would abruptly fall into a vegetative state that would put decisions about her health care into the courts and the public eye for a decade. But simply assuming that an advance directive or living will would have prevented the family battles that raged over the decision to withdraw the artificial nutrition keeping her alive might be misguided, experts say.
"Living wills are directives, not mandates," says Glenda Brewer, JD, an attorney with Dallas-based Cowles & Thompson. "They’re not as ironclad as some might want them to be."
Because living wills — known variously as living wills, advance directives, and directives to physicians — generally are broadly worded, they sometimes require interpretation by family and physicians, and because Schiavo’s parents and husband might have interpreted her wishes differently, there still might have been a fight over whether to let her die by withdrawing nutrition, she says.
There are ways, however, that people can let their loved ones and doctors know exactly what their wishes are, and Brewer says physicians who bring up the subject with their patients are performing a service not only to the patients, but to their families and to the doctors themselves.
Living will not as strong as power of attorney
Some families content that their loved ones have living wills are sometimes surprised when end-of-life decisions have to be made and they find that the living will doesn’t speak to the precise decisions that have to be made.
"The living will says do or don’t put me on life support, but that can be very broad, and there are a lot of different scenarios that might require you to interpret that," says Brewer, who mentions surgery complications and automobile accidents as two examples.
When drafting living wills, she says, most people envision themselves as elderly, very frail, and the decision to end life support as being very clear. But too often, people are injured or very ill while still young and with the prospect of a longer life — though perhaps an altered one — still in the picture.
Angela Prudhomme, JD, chief of ethics policy for the Veterans Health Administration National Center for Ethics in Health Care in Washington, DC, says predicting the future is perhaps the biggest pitfall of a living will.
"What you’re asking people [who sign living wills] to do is to predict what they may want, which is always difficult," she says. "You can’t always anticipate your exact circumstances.
"And if the person doesn’t share [his or her] opinions and desires with the surrogate or decision maker, sometimes [the wishes] can be rather ambiguous, leaving [the decision makers] wondering just what they should do."
A document that is more powerful, legally, than a living will and offers a clear voice to the patient is a durable power of attorney, known also as a health care proxy or power of attorney for health care.
A power of attorney for health care is not an end-of-life tool, although it can be priceless if questions arise about a patient’s end-of-life care. Brewer says anyone older than 18 should have a medical power of attorney, which simply designates a specific person is in charge of an individual’s health care decisions when he or she is unable to be — for example, during surgery, during loss of consciousness, or if the person is rendered incompetent for some reason.
Prudhomme says combining aspects of a living will into a power of attorney not only specifies what the patient’s wishes are, but also designates the person who the patient trusts to carry out those wishes.
"Then you have someone who knows your wishes, is willing to carry them out, and is recognized by the court as being the person you want to make those decisions for you," she says.
Brewer says, in the case of Terri Schiavo, state law assumes the spouse is the next of kin and responsible for health care decisions, but without a written directive of any kind, her husband, Michael Schiavo, was less armed to battle her parents’ contentions that the decisions he was making were not what Terri Schiavo would have wanted.
"If someone in her shape can’t convey their wishes, it’s a real problem, because this is a personal and private matter and should never be in court," says Brewer. "And it’s harder on loved ones to make those decisions if you haven’t weighed in on it. Preparing advance directives and power of attorney is a very selfless thing you can do for your loved ones."
Directives can be specific
Besides causing a flood of new living wills and powers of attorney to be drawn up, the Schiavo case also created discussion about whether artificial nutrition and hydration should be considered treatment or basic comfort care.
Prudhomme says the courts and medical community consider food and water to be treatment, but patients have the right to accept or refuse treatment. Therefore, specifying whether one wants to receive food, water, painkillers, and antibiotics are among the points that should be considered in advance directives and in discussions with a designated health care proxy.
Brewer says it’s been her experience that physicians don’t bring up the subject of advance directives with their patients as often as they might. However, hospitals often ask admitting patients whether they have advance directives and provide forms if the patients want them.
It is a good idea to have a copy of a patient’s advance directive made part of a patient’s file. Physicians keep directives as part of the permanent file; whereas hospitals are capable of storing documents such as advance directives for only a short time.
Fill-in-the-blank forms for living wills and powers of attorney for health care can be found at multiple sites on the web, such as the legal research site FindLaw.com (www.estate.findlaw.com). The forms may be altered to reflect individual preferences. Persons executing the forms should check their state law to find out what requirements there are for having the statements witnessed or notarized. (Editor’s note: See insert for examples of a Living Will and a Health Care Proxy.)
Sources
- Glenda O. Brewer, JD, Shareholder, Cowles & Thompson, Dallas, TX. Phone: (214) 672-2000. E-mail: [email protected].
- Angela Prudhomme, JD, Chief of Ethics Policy Service, Veterans Health Administration National Center for Ethics in Health Care, 810 Vermont Ave. N.W., Washington, DC 20420. Phone: (202) 501-0364. E-mail: [email protected].
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