In late March, it seemed that all the national news media were focused on the fate of Teri Schiavo, the severely brain-damaged Florida woman whose family battled in court to determine whether, after 15 years in a persistent vegetative state, she should live or die. Schiavo’s husband insisted that she would have wanted to die rather than remain indefinitely in her cognitive state. Her parents and siblings argued that while she was still alive and possibly conscious, to remove her feeding tube was tantamount to murder. The Florida courts-and eventually the federal courts, as well-agreed with Schiavo’s husband.
A major issue in the matter of Teri Schiavo’s plight was the absence of an advanced health care directive. Advance health care directives include living wills and health care proxies, which are legal documents that list an individual’s end-of-life wishes with regard to health care treatment.
A living will is designed to allow a person to specifically list the types of treatment he or she does or does not want once they no longer possess the ability to convey those wishes. The provisions of a living will are not effective until and when an individual loses the capacity to make decisions, and there is no chance of regaining those abilities. In that instance, a health care provider is obligated by state law to abide by the terms of the living will. Once a living will is properly executed by an individual it should be stored in a safe place, and shared with family members as well as with treating physicians. This will ensure that it will be readily available and adhered to when its use becomes necessary.
A health care proxy is designed to allow an individual to appoint a health care agent, who is presumed to know the wishes of the person who executed it with regard to end-of-life health care decisions. An individual should appoint a person who is most trusted in his or her life to serve as his or her agent. Similar to a living will, a health care proxy become effective when an individual no longer possesses the capacity to make health care decisions, and there is no chance of regaining that ability. Once this occurs, the agent appointed in the individual’s proxy is designated to make decisions on behalf of the incapacitated individual and is presumed to know what that person’s wishes are. A health care proxy should be stored safely by both the individual executing it and by his or her agent. A copy should be provided to other family members, and the individual’s treating physician.
United Spinal Association can assist you in drafting either document, as there are legal requirements to make the documents valid. Please contact me at 718-803-3782, ext. 311 or via e-mail to ask for more information or assistance with drafting these important documents.
John P. Herrion is Legal Counsel at United Spinal.
