By Martin M. Shenkman, Esq.
The tragedy of Terri Schiavo and the publicized legal
battle that emerged between her family members of whether to
withdraw life-sustaining measures, caused millions of clients
to rush into preparing end-of-life documents.
Raising people's consciousness to focus on these issues is a
positive development that emerged from the tragedy, as long
as clients have a thorough understanding of the intricacies
of crucial end-of-life decisions and do not make uninformed
decisions based on the 60-second media sound bites.
Understanding the following misconceptions will equip
advisors to address in a practical and efficient manner the
many questions clients will pose. Because there are
differences in state laws, and because these laws will
undoubtedly be revised to address the aftermath of the
Schiavo tragedy, you will need to review your applicable
state law. This article focuses on five issues that are often
overlooked.
Misconception 1: Clients
need only a living will.
A living will is not enough.
A health care proxy is also essential. A health care proxy,
also called a medical power of attorney, is a legal document
through which clients designate a trusted person (agent) to
make health care decisions for them if they are unable,
because of a disability or an illness, to do so. Although the
two documents are integrally related, having them prepared
and executed as independent documents may facilitate their
use in many instances. The focus of the health care proxy is
to appoint someone as an agent to make health care decisions,
as well as name several successors. Joint agents, however,
should never be named.
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In some instances, health
care providers prefer a health care proxy to the living
will.
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Some states do not afford
the same recognition to a living will as they do to a
health care proxy.
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A health care proxy can
address the inadequacy of a living will. For a living will
to be valid, decisions may have to be specified in a manner
that presents "clear and convincing" proof of a client's
wishes. This is not always simple, especially if the client
is uncertain, or has several medical conditions that make
it difficult to clarify the desired course of action.
General statements such as "no heroic measures," and other
similar statements typically used in living wills, may not
suffice.
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It is impossible to
include every potential illness or treatment in a living
will. When the client appoints a person to act in his or
her behalf, these decisions can be made based on the
client's condition at that time, the available medical
procedures and advice, and the client's general
wishes.
Misconception 2: Your
clients need only a health care proxy.
Numerous clients may also have
the impression that a health care proxy is all they need. This
perception is just as dangerous as only having a living will.
In addition to a health care proxy, clients must also prepare
and sign a living will, which addresses a range of important
legal, financial, religious and medical issues. The living will
should provide the general directions and parameters for the
agent appointed under the health care proxy to follow. It
should specify how a client should be cared for in the event of
grave illness. What decisions should be made in the event of a
terminal illness? What time frames should apply? The client may
have very different feelings if he or she has a life expectancy
of 12 months instead of 30 days. Many standard forms ignore
this vital detail.
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The client's agent may not
be available when an immediate medical decision has to be
made. In the absence of an agent, a living will—that
includes statements of the client's general health care
wishes—can provide guidance for the medical
staff.
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Agents often
misunderstand, or intentionally refuse to follow, the
wishes of the client. For example, the most common reason
medical professionals cite for children not honoring a
parent's wishes to avoid heroic measures is "guilt." That
guilt often reflects itself in children demanding every
lifesaving measure available—even in contradiction to
parental wishes. To avoid this, create a living will that
clearly sets forth key parameters, providing objective
guidance for the agent and other loved ones.
Misconception 3: Key issue
to address is whether your client wants heroic
measures.
Should mechanical means be
used to prolong life? That may be a vital decision, but it is
far from the only topic living wills need to address. The Terri
Schiavo tragedy did not end with her death. Fights continued
over whether she should be buried or cremated, and even the
location for the burial or interment. The sad lesson is that
every client should make all personal end-of-life decisions,
not just the decision concerning heroic measures. Most standard
forms, even most lawyer prepared forms, fall short of the
comprehensive communication that living wills should really
provide family and loved ones. Additional decisions to address
include:
Nutrition and Hydration.
Living wills should
specifically state whether the client would ever permit the
agent to withdraw artificial nutrition and hydration. Clients
may decide to withdraw nutrition, but not hydration. If the
client does not want artificial feeding, even if
discontinuing it could hasten death, this should be
specifically stated. Many states will not permit the
cessation of nutrition or hydration unless the living will
specifically authorizes it. How should "artificial" be
defined? Should a distinction be made between withdrawing
nutrition and hydration (e.g., a feeding tube) versus
withholding the initial connection to artificial feeding
tubes?
Quality-of-Life Statements.
A living will may be the
only written evidence of the client's personal wishes.
Therefore, it should clearly and precisely state the client's
feelings and wishes about health care, treatment, quality of
life, whether he or she wishes to refuse or accept medical
treatment, and so forth. The law may require that the living
will demonstrate this with "clear and convincing evidence."
Many living wills contain general statements that if there is
"no quality of life," then "no heroic measures" should be
taken to prolong the client's life. To one person, no quality
of life might mean the inability to communicate to the
outside world, with no anticipation of recovery. To another
person, no quality of life may mean severe and ongoing pain
that cannot be abated. Clients should analyze their feelings
and concerns about quality of life and endeavor to
communicate them. If this concept is important to the
client's determination as to whether life support should be
halted, the living will must communicate these wishes. The
client may wish to add personal feelings or comments to
tailor this portion of his or her document.
Anatomical Gifts (Organ Donations).
Organ donations are a vital
step to help save other people's lives. Clients should
seriously and carefully consider permitting organ donations.
If clients do not wish to permit organ donations, they should
indicate that wish as well. For the clients who are
uncomfortable being an organ donor, they should be encouraged
to permit organ donations for family members.
Burial Instructions.
If a client wants a specific
eulogy, service or other steps to be taken, he or she should
specify this in his or her living will. If a client wants a
traditional religious ceremony, the living will should state
this. Many clients, perhaps the majority, may not want
religious restrictions applying to end-of-life medical
decisions (such as the removal of a feeding tube). A majority
of these clients, however, do want to adhere to traditional
religious services and customs. This apparent contradiction
(religious customs applicable to burial, but not medical
decisions) must be addressed. If the client wishes cremation
and interment instead of burial, this should be stated. If
advance arrangements for the location of burial or interment
have been made, this should be stated.
Pain Relief.
How does the client feel
about pain medication and other treatments? Should they be
administered even if they hasten death? Are there any adverse
religious implications if pain relief hastens death? Should a
distinction be made between the side effect of pain relief
somewhat hastening death versus affirmatively using pain
medication in doses intended to cause death? How can this
distinction be made? How important is consciousness versus
pain relief?
Misconception 4: Religious
issues are not critical to address.
The initial reaction of many
clients is to dismiss religious issues. Most people who sign
living wills while they are healthy are not concerned about
religious issues. Many of these same people, when faced with a
major catastrophe such as terminal illness or loss of a close
family member, however, fall back to their religious roots for
guidance and comfort. Unfortunately, it may then be too late
for these clients, or their loved ones, to remedy the
situation.
Most living wills completely ignore religious implications.
Living will forms provided by religious organizations often do
not address the dichotomy between burial and end-of-life
medical decisions. Thus, every client must tailor whatever
living will form they use to expressly reflect their wishes.
Together, the lawyer and the client must consider the religious
implications of the entire health care process while the client
is competent, so in the event the family experiences tragedy,
no one will regret what was done.
Religious issues affecting living wills and end-of-life
decisions include:
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The ability to cease
"heroic measures" or preserve life due to a specific
religious requirement;
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Whether (and when)
nutrition and hydration can be withdrawn;
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Whether the quality of
life is relevant to the decision process, or merely life
itself;
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Funeral and burial customs
and rituals;
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Permissibility and
conditions of organ donations;
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The administration of pain
relief, the impact on consciousness to perform end of life
rights, and the distinction between the administration of
pain relief medications to relieve pain versus the
administration of medications that hasten death;
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The use or nonuse of blood
products; and
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Who can be named as
agent.
Misconception 5: A simple
document from the Internet will suffice.
A combination of a
comprehensive living will, health care proxy and a plan of
communication are essential to achieve any client's wishes. Too
many clients rely on simplistic commercial forms purchased in
office supply stores or obtained from various organizations or
Web sites. Most of these forms do not address the myriad of
issues highlighted in this article. Often, the commercial forms
are limited to simple instructions such as "pulling the plug,"
but statements such as, "I do not want heroic measures if I am
terminally ill" do little to clarify tough, emotional issues or
ease the burden of loved ones charged with making the
decisions. Many of the simple commercial forms are not adequate
for a client to communicate his or her personal, specific or
religious wishes to friends, family or others.
Summary
Merely signing a living will
or health care proxy, especially one that is too vague and does
not address the level of detail discussed in this article, will
accomplish little in extreme situations. It may not avoid the
strife that afflicted the Schiavo family. These battles, even
though not covered in the media, occur with tremendous
frequency. Documents must be prepared with proper care,
attention and thought. Clients must discuss these issues with
family and loved ones, religious advisors, and medical
providers in order to potentially avoid the same strife, and
pain, Terri Schiavo's family experienced.
About the Author
Martin M. Shenkman, CPA, MBA,
J.D., an attorney who concentrates on estate and tax planning
and estate administration, has a private practice in Teaneck,
N.J., and New York City. Shenkman is a regular source for
business publications, including The Wall Street Journal,
Fortune, Money, The New York Times and others. He has a weekly
radio show on Money Matters Financial Network. Shenkman has
published 34 books including: Living Wills & Health Care
Proxies: Assuring That Your End-of-Life Decisions Are
Respected, which is currently in process. He's admitted to the
bar in New York, New Jersey and Washington, D.C., and is a CPA
in New Jersey, Michigan and New York.
Please call Jeff W. Anderson, J.D. at 423-439-5352, or
e-mail us at
andersjw@etsu.edu, for
more information.
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