Builders and Contractors Exchange
Weekly Bulletin: 12 Jul 2005
Living Wills, Medical Powers Of Attorney And The Schaivo Case: What Did We Learn?
By: Geoffrey Hemphill
I am the tax and benefits guy at my firm. And when I write for this publication, I generally try to thrill the reader with the most exciting events happening in the world of business tax and employee benefits. Considering the unbroken string of page-turners I have published right here over the years, the last thing I want to do is rehash a disturbing story like the case of Terri Schaivo. Nevertheless, the lessons we can learn from that tragedy are too important to pass up.
In case you missed the relentless media circus, Terri Schaivo had been in a persistent vegetative state for years and her parents and husband disagreed on whether to remove her feeding tube. Perhaps the most frustrating thing for an attorney who does estate planning, is that some simple advance planning could have prevented much if not all of the controversy.
What happens to you if you are in a coma and obviously can't speak for yourself? One solution is for a court to appoint a guardian to help doctors make decision regarding your care. As we saw in the Schaivo case, such procedures don't always work as intended. Another more preferable option is to take the time to plan ahead with some simple estate planning documents.
Documents such as a "living will" or a "medical power of attorney" are widely used to more clearly direct physicians as to the type of care the individual wants to receive in case of an end-of-life or vegetative circumstance. The living will states in writing the intention of the individual in such situations. The medical power of attorney appoints a person to make medical decisions on behalf of the individual when he is unable to do so for himself. I find a combination of these two documents is most beneficial.
These documents are not fool proof because they depend upon a third party complying with their terms. That doesn't always happen. Also, some states do not recognize such documents. Thus, it is important that the attorney drafting the living will or medical power of attorney stick closely to the language stated in any applicable state law. In the end, it is much better to have a well-drafted living will or medical power of attorney document than to leave the issue to the courts.
Unfortunately, Terri Schaivo did not have a living will or a medical power of attorney, and her family was left to battle in the courts in front of the nation on the nightly news. Yes, her plight was tragic. Perhaps, however, some good can come out of it. Maybe people will pay more attention to their estate planning needs, and save their loved ones from making some very difficult decisions.
Questions?
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This article is meant to bring awareness to this topic and is not intended to be used as legal advice.