December 2007

Article Tools

Why you need a living will

If you have procrastinated writing a living will, think "Theresa Marie Schiavo."

Out of the almost interminable news coverage of the lingering death of Theresa Marie Schiavo, one image from a newspaper photo stands out: Demonstrators outside the home of Ms. Schiavo's husband carrying pickets saying, "No Living Will = Feeding Tube."

Whatever their motivations, the demonstrators correctly pointed out that under Florida law, as in most states, a patient who cannot speak for herself is presumed to want to be kept alive by artificial feeding and hydration.

In the Schiavo case, the presumption was ultimately, painfully, and expensively overcome by Florida court decisions. The courts' determination, which was appealed numerous times and challenged by the U.S. Congress, was that Ms. Schiavo's intent was not to continue living in the circumstances in which she found herself — a vegetative state with no reasonable hope of recovery.

Which of us would want ourselves, our families, or our loved ones to go through this experience?

In New York and in almost all states, the law sets forth a clear and simple procedure to be followed in order for a person to effectively document his or her intent with respect to medical treatment while incapacitated. This legal instrument is called a living will — or, in some states, a healthcare directive.

You can download a living-will form from the Internet or obtain it at hospitals.

A living will is a completely personal statement and does not have to follow a particular format or define in any particular way either the medical circumstances in which it becomes operative (such as, "If I should be in an incurable or irreversible mental or physical condition with no reasonable expectation of recovery), or the procedures and treatment to be withheld in these circumstances (such as antibiotics, surgery, or respiratory support).

The one rule which must be universally followed in preparing a living will is that if you want artificial feeding and hydration to be withheld, you must expressly say so.

Tube feeding is considered to be in a separate category from other forms of medical treatment, and it requires an express

Legally, the requirement that the intention to forego tube feeding be specifically stated raises a particularly high bar for the patient's family to overcome in court.

PROXY ALSO NEEDED

A living will does not stand alone. It is simply a statement of intention. It must be accompanied by a separate document (or a separate part of the same document) known as a healthcare proxy, or healthcare power of attorney.

The healthcare proxy appoints an agent to act on behalf of the person signing it in connection with all healthcare decisions. The agent's authority only becomes operative when the person who signed the proxy is unable to make his or her own healthcare decisions (for example, if the person is comatose).

The person named as agent is to be guided by the statement of intention in the living will, as well as by the agent's general knowledge of the wishes and philosophy of the patient. Since the enactment of HIPAA (Health Insurance Portability and Accountability Act of 1996), it is recommended that the Healthcare Proxy specifically give to the agent the authority to request, receive, and review any medical records.

When prepared correctly and customized to your individual wishes, a living will and a healthcare proxy can go a long way towards avoiding the Schiavo controversy in your family.

David B. Mandell, JD, MBA, is an attorney, lecturer, and author of Wealth Protection, MD. He is also a co-founder of The Wealth Protection Alliance (WPA), a nationwide network of independent financial advisory firms. Christopher P. Jordan is president of Lexco Wealth Management (800-554-7233) and provides business planning to physicians around the country. Celia R. Clark, JD, LLM, is managing director of Celia R. Clark PLLC, (212-370-4220) which specializes in tax law, estate planning, trusts, and wills.

DISCLAIMER: The information contained in this article is general in nature and should not be construed as comprehensive financial, tax, or legal advice.

Comments

Be the first to comment on this Article

Post Your Comment

Name

Location

Comment

To submit your comment, please type the security word shown in the picture.

.

Remember information