Your Will be Done
The personal and political firestorm surrounding Terri Schiavo shows how much you need a living will.
By Ronaleen Roha
March 23, 2005
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The personal and political firestorm that surrounded Terri Schiavo -- the 41-year-old, brain-damaged Florida woman who was tube-fed for 15 years -- made it heartbreakingly clear the need to do more than write a will to divvy up your assets. You also need a medical advance directive that specifies something even more important: what you want to happen to yourself.
Courts consistently ruled that Terri Schiavo's husband, who wanted her tube removed, was her legal guardian and had the legal right to make decisions about her treatment. He maintained that his wife would not have wanted to live in her vegetative condition. Her parents, however, insisted that she continue to be fed.
The debate spurred an intense legal battle that engaged the Florida legislature and governor. In an extraordinary move, Congress and President Bush approved a bill to transfer jurisdiction in the case to federal court for further review.
The legal and political maneuvering may be extraordinary, but the issues are not. Every year hundreds of families go to court to answer similar questions of life and death.
Had Schiavo made clear, in writing, the medical treatments she did or did not want in the event she was unable to speak for herself, and had she designated a person she wished to make medical decisions for her, her name might be known only to her loved ones.
Make your wishes known
Advance directives take two basic forms, and you need both, says Martin Shenkman, an estate-planning attorney and author of Living Wills and Health Care Proxies. The book -- written in response to the Schiavo case -- includes detailed sample forms (available through www.healthcareinstructions.com; $16.95 plus $3.50 shipping).
The first advance directive, a durable power of attorney for health care, appoints a person to be your health-care agent or proxy to make medical decisions for you if you can't do so yourself. It applies any time you become incapacitated (for instance, if you were to be rendered unconscious as the result of a car accident), not just at the end of life. It should grant broad powers to maintain flexibility, says Shenkman, "because you can never conceive of all eventualities."
For example, your agent should have the right to arrange for hospice or other kinds of care. If it becomes necessary to move you to another state in order to honor your wishes, your agent should be empowered to make that decision and make sure that the new state's laws apply to you. (Get advice on choosing your health care agent from the legal experts at Nolo.com.)
The second, a living will, spells out the kinds of medical treatment you do and do not want if you are unable to speak for yourself. It generally applies only if a person is terminally ill and faces imminent death -- or if he or she is in a persistent vegetative state. Although this can be a contentious issue, it's much more likely that your wishes will be followed -- and that no legislature, governor or president will intervene -- if you have a living will.
"Unforeseen events often happen in the wee hours of the morning with no doctor or family around," says Patti Klein, a physician in Teaneck, N.J. "If there's a living will in a patient's hospital chart, decisions may be made a lot easier."