How Can I Avoid Schiavo Issues?

By Angela G. Parsons

Terri Schiavo and the ensuing court battle between her husband and her family has brought the importance of the Living Will as well as a Durable Power of Attorney for Health Care into the forefront. It has also brought a lot of questions with regard to why this is happening and how it might be prevented in the future.

Some of the most frequently asked questions we have received are:

1. Why did this happen?

Terri Schiavo collapsed in February of 1990 and never regained consciousness. She did not have any written instructions, such as a Living Will or Durable Power of Attorney for Health Care, that expressed her wishes should she end up in such a condition.

2. Why are there lawsuits about Terri Schiavo's care?

Her husband, Michael, went to court to be named as Terri's guardian, and the court agreed that Michael would be the best person to make these decisions on Terri's behalf. The court relied on the testimony of five different people, including Michael, that Terri would not want to be kept alive in this type of situation. The court also looked at the medical evidence, which the court said conclusively established that she had no hope of ever regaining consciousness. Under the Florida statute, as is similar with the Ohio statute, the testimony of two different physicians is required to state that a person is in a persistent vegetative state, or in Ohio, it would be a considered a permanently unconscious state. Permanently unconscious is defined in the Ohio statute as an irreversible condition in which the person is permanently unaware of themselves and their surroundings. Their physician and one other physician have examined them and agree that a total loss of higher brain function has left that person unable to feel pain or suffering. The court in Terri's case therefore found that Terri's oral declarations stating that she would not want to be kept alive if she was in this state, and the testimony of her physician and one other physician that she is in a persistent vegetative state has left the court with allowing Michael, as Terri's guardian, to make the decision to remove nutrition and hydration. The court battles that have since ensued are based on Terri's mother and her family claiming that Terri would make the choice to be kept alive in this situation. Since there are only oral declarations of Terri's wishes, it brings the possible question of what Terri would really want in this situation.

3. How can we prevent this from happening to us?

The most important way to make sure that this does not happen to you is to put your wishes in writing. If your wishes are in a legally binding document, it would be very difficult for your family or friends to fight about it. Another important aspect is to pick an agent or attorney-in-fact that will follow your wishes with regard to your choices.

4. Do I have to meet with a lawyer to fix this problem?

The Ohio Hospice and Palliative Care Organization, the Ohio State Medical Association, the Ohio Hospital Association, the Ohio Osteopathic Association and the Ohio State Bar Association have put together two documents that you can obtain from the Columbus Bar Association's web site (www.cbalaw.org). These are a standard Health Care Power of Attorney and a standard Living Will. If you want something other than the standard forms, then you would need to speak to an attorney about drafting special documents. If the standard forms are sufficient, then they can be printed off the web site and must be properly executed.

5. What do the standard Living Will forms say?

A Living Will is a statement of your wishes that you would like to be honored if you were to become terminally ill and unable to express your wishes regarding your health care, or in a permanently unconscious state. As long as you are able to communicate your wishes, a Living Will will not take effect. A permanently unconscious state is defined as an irreversible condition where the person is permanently unaware of themselves or their surroundings and their physician and one other physician has examined them and agree that a total loss of higher brain function has left them unable to feel pain or suffering. A terminal condition or terminal illness means an irreversible, incurable and untreatable condition caused by disease, illness or injury where your physician as well as one other physician has examined you and believe that you cannot recover and that death is likely to occur within a relatively short time if no life sustaining treatment is received. The standard Living Will form states that you want no life sustaining treatment, including CPR administered if you are in a terminal condition or a permanently unconscious state. That if such life sustaining treatment has started, that you would like it withdrawn, that you have issued a Do Not Resuscitate (DNR) order and that you would like to be permitted to die naturally with no action taken to postpone your death, except as to provide the care that is necessary to make you comfortable and to relieve any pain. There is also a separate authorization in the document that you must sign if you want nutrition and hydration withheld if you are in a permanently unconscious state. The authorization states if your physician and one other physician have examined you and determined to a reasonable degree of medical certainty that artificial and technologically supplied nutrition and hydration will not provide comfort to you or relieve your pain. If you sign the authorization, then you have made the choice to have nutrition and hydration withheld. Again, this will not allow them to withdraw nutrition or hydration if it would cause you any pain or make you uncomfortable in any way.

6. What do the standard Health Care Power of Attorney forms say?

The standard Health Care Power of Attorney is only in effect when you cannot make health care decisions for yourself. The Health Care Power of Attorney names an agent who has the right to make health care decisions on your behalf. This becomes effective as soon as your physician determines that you are unable to make health care decisions. The Health Care Power of Attorney allows your agent to make decisions on your behalf without requiring them to go to court. The Health Care Power of Attorney gives your agent the ability to make certain decisions with regard to your health care, however, if you have prepared both a Living Will and a Health Care Power of Attorney, the Living Will will always override your agent's or attorney-in-fact's decisions on your health care. The Durable Power of Attorney for Health Care only gives your agent the right to make decisions on your behalf if you are unable to or have not made those decisions. The Living Will only comes into effect if you are in a permanently unconscious state or if you are terminally ill. However, the Health Care Power of Attorney takes effect anytime you cannot make health care decisions for yourself, it is not limited to times when you are permanently unconscious or terminally ill. Your agent will not be able to make certain decisions if you indicate on the form that they cannot make those decisions on your behalf. There is a list of authority that you can give or not give to your agent. Your agent's authority is also limited by Ohio law, which states that life sustaining treatment cannot be withdrawn unless your physician and one other physician agree that you are terminally ill or permanently unconscious, and that you have no reasonable possibility of regaining the ability to make decisions. Your agent is also not authorized to withdraw any treatment that provides comfort care or relieves pain. The Health Care Power of Attorney, similar to the Living Will, has special instructions where you decide if nutrition and hydration can or cannot be withheld if you are in a permanently unconscious state. If you do not sign the special instruction line, then your agent will not have the authorization to withdraw nutrition and hydration. There is also an additional area for instructions or limitations for your agent. This can include any special religious or personal concerns that you may have.

7. Is a Living Will part of our estate plan?

At Kegler, Brown, Hill & Ritter we always give clients the option to include their Health Care Power of Attorney, Living Will and now the new Donor Registration Enrollment Form as part of the preparing or updating of an overall estate plan. We are happy to help any of our clients or prospective clients in preparing these documents, but they can also be obtained from the Columbus Bar Association web site (www.cbalaw.org) if you so choose. If you have any questions with regard to this information, or your estate plan or advanced directives, please feel free to give us a call at (614) 462-5400.