Living Wills, More than a Piece of Paper?

by Cheryl Nemanic

Nearly one out of every four U.S. households (23 percent, or 22.4 million) provides care to a relative or friend aged 50 or older. The majority of these caregivers are baby boomers. In the twenty-first century the demands placed on family and other informal caregivers are likely to escalate, affecting nearly every American family. Since most persons prefer to stay in their own homes and live independently for as long as possible, this column addresses questions and concerns regarding these issues.

Q The sad situation in the news with Terry Schiavo has caused us to start thinking seriously about living wills. We’ve heard that you can do something as simple as writing your wishes on a piece of paper. But we’ve also heard that even a living will done by an attorney may not be honored. What do we need to know about writing living wills, and do they stand up in court?

A I consulted with an expert in elder law, Attorney John Payne, who wrote:

A Lesson from Terri Schiavo

The agony of the two families locked in a desperate struggle over whether to withdraw the feeding tube from Terri Schiavo may have a beneficial effect if it persuades people to sign health-care directives. No matter which side of the controversy you favor, you must admit two things: 1) Broadcast newsmongers, religious opportunists and elected politicians–not all of them, but many–have used Terri Schiavo for their own gratification and profit. 2) Terri Schiavo would never have wanted her family to go through the misery that is being inflicted on them. Much of this misery could have been avoided if she had executed an "advance directive" and appointed someone to make medical decisions for her.

Pennsylvania does not have a statute covering cases like Terri’s, but there are court decisions concerning termination of life support when the patient has not expressed her desires in a legal document. A 1993 case, In re: Fieri, was very similar to the Schiavo case. Life support for a patient who had been comatose for almost 20 years was terminated even though the patient had expressed no wishes in that regard. The court held: 1) that at 21, when he was rendered comatose, the patient would not have been expected to express wishes regarding life-support, 2) that the patient's condition was irreversible, and 3) that medical evidence indicated that the patient's life was "without content, let alone quality." It is likely that a Pennsylvania judge would have reached the same decision as the judge in Florida, even if Terri had not said she did not want to be kept on a feeding tube. However, these decisions need not be postponed for decades where the patient has clearly expressed the desire not to be kept on life support.

The law is clear that a competent individual has the right to refuse medical care or to have it withdrawn. A living will is a document that states an individual’s desires regarding treatment, but it is just a piece of paper. It does not act on its own and may be ignored by doctors and other health-care providers.

An incompetent patient is under the complete control of a hospital or nursing home administration. Family members and significant others can express their desires, but without guardianship or power of attorney they have little authority to enforce their decisions. This is a fact that many persons do not know. They often become complacent during periods when relations between the care provider and the family are amicable.

The durable power of attorney is the most important estate-planning document a person can execute. The power of attorney allows a person (called the principal) to appoint the person of his choice (the agent) to make important financial and health-care decisions. It also allows the principal to give guidance in the exercise of those decisions. Appointing a person to act on your behalf is much more effective than simply signing a paper that contains instructions. Furthermore, it is impossible to cover all the possibilities in a legal document. It is necessary to have a trusted relative or friend interpret the instructions, considering all of the circumstances and then make the decision to treat or not to treat.

Because of the extreme importance of this document, it should not be prepared without careful review of all the provisions nor executed without careful consideration and counseling. A responsible attorney will explain the fiduciary responsibility borne by the agent. The attorney will also be alert to potential abuses of the power of attorney and, will decline to participate in either drafting or execution if it appears that an incompetent principal will be induced to sign a power of attorney.

Cheryl Nemanic, CCM, is the General Manager of Private Duty Services for Liken Health Care, Inc., a private duty nursing service in the Pittsburgh area since 1974. If you have a question, Cheryl can be reached by phone at (412) 816-0113, by email at cnemanic@likenhealthcare, or visit the website at www.likenhealthcare.com.