By: Donna M. Stefans, Esq. AIF®
If there is only one estate planning tool that everyone over age 18 should have, it is an advance health care directive. Sure it is not the sexiest tool in the arsenal, but this document often heads off family conflict, heartache, and needless medical and legal costs in ways that no other document can. An advance health care directive often includes two documents — a Living Will and a Medical Power of Attorney or Health Care Proxy.
In a Living Will, you specify what actions should be taken or not taken regarding your healthcare in the event you become incapacitated and unable to communicate these decisions for yourself. For example, a Living Will guides your medical team regarding whether to perform surgery or administer artificial life-sustaining measures. A Health Care Proxy is a document that authorizes another person (your agent) to make decisions about your healthcare if you become unable to make these decisions yourself due to illness, disability, or incapacitation. At Stefans Law Group PC we encourage clients to execute both a Living Will and Health Care Proxy to provide comprehensive guidance regarding their medical care.
To illustrate the importance executing an advance care directive while you still can, let us revisit the three famous cases of Karen Ann Quinlan, Nancy Cruzan, and Terri Schiavo. These were three young women whose legacies are now just protracted legal battles over how they were cared for after they lost the ability to make healthcare decisions for themselves. None of them had advance health care directives in place before becoming incapacitated.
Karen’s case is often regarded as one of the first “right-to-die” cases in U.S. legal history. Specifically, the issue was whether “medical treatment” includes life-sustaining measures, such as the use of a ventilator to keep Karen breathing, and whether an individual acting on the patient’s behalf can lawfully decline the administration of such measure. The court determined that yes, a patient or their agent, must consent to medical treatment before it is lawfully given. In other words, a person (or their agent) has a right to consent or deny receiving life-sustaining measures. Karen’s breathing tube was removed, but she continued to live in a vegetative state for nearly 10 more years.
Nancy’s case built upon Karen’s, but specifically addressed whether the array of medical treatment that can be refused by a patient’s agent includes the use of a feeding tube to administer food and water. The case was between Nancy’s family, who claimed that Nancy would not want to be sustained via feeding tube, and the State of Missouri, who claimed that only the patient, not his or her representative, is able to make that decision. Ultimately, Nancy’s family convinced the court that Nancy would not want to be kept alive on a tube and food and water with withdrawn. She died 13 days later, but 8 years had passed the litigation over her care had begun.
In Terri’s case, the court had to determine who had the authority to make end-of-life decisions on behalf of an incapacitated person. Terri’s husband wanted to remove the feeding tube but Terri’s parents did not. Applicable law automatically gave the authority to make the decision to Terri’s spouse. After years of legal battle, the court determined that the right was properly given to her husband, and he ordered the tube removed. Terri died 13 days later.
Each of these cases reminds us that it is important, thoughtful, and responsible to provide clear guidance regarding our health and medical care. Additionally, unanimous decisions amongst well-meaning friends, family, and state officials, are not easily made and can create life-long tumult and pain. The best way to protect yourself and your family is to make these decisions today, while you are well.
Make an appointment to meet with us to learn more. Our dedicated team of attorneys, certified financial planners, and tax experts have over 17 years of estate planning and elder law experience. We will help you develop a comprehensive estate plan that achieves lasting security and peace of mind for you and your loved ones.