John Whitehead's Commentary
Would a Living Will Have Saved Terri Schiavo's Life?
Would things have turned out differently if Terri Schiavo had created a living will? That's the question lurking in the minds of many Americans who, after having witnessed the emotionally charged atmosphere surrounding Terri Schiavo's life and death, are suddenly anxious to put down in writing how they want to be dealt with if they become incapacitated.
According to the San Francisco Chronicle, only about 25 percent of people in the United States have filled out living wills or designated someone to make medical decisions for them in the event they are unable to do so. However, the U.S. Living Will Registry in New Jersey, which stores living wills and advance directives so they can be accessed electronically by doctors and hospitals, reported that registrations nearly doubled in the last week--a clear indication that Americans want some say in the way they live or die.
A living will is a document that expresses a person's end-of-life wishes, providing instructions governing what treatment you do or do not want in case of apparently terminal illness. Living wills can be used to state that a person does not want any life-sustaining treatment if it would serve only to artificially prolong the person's life. They can also provide that the person wants his or her life to be prolonged to the greatest extent possible. In some states, a woman's living will can even provide that if she is pregnant, life-sustaining procedures should not be withheld if it is possible for the fetus to develop to birth.
Understandably, few people want their loved ones put through the kind of emotional turmoil that Terri Schiavo's have undergone. But before you download that living will form off the internet, there are a few things you should be aware of.
First, a living will isn't much good by itself. According to Dr. Joseph Barmakian, president of the Living Will Registry, while living wills are very specific about some measures doctors should or should not take if the patient is permanently unconscious or terminally ill, they don't adequately cover other scenarios. In many states, doctors are also not required to obey living wills. In fact, they may even be prohibited from doing so in the absence of other required documents.
Second, you should carefully consider executing a medical power of attorney, power of attorney for health care or health care proxy, which names someone as your agent and permits that person to make medical decisions for you if you cannot do so. Although some experts stress the importance of appointing a medical power of attorney in addition to creating a living will, even that is no guarantee that your end-of-life wishes will be obeyed since the requirements for the enforceability of health care directives vary greatly from state to state. For example, Arizonans have a variety of options for expressing their desires should they become incompetent or have an incurable condition. A person can execute a health care power of attorney to make health care decisions on his or her behalf, or a person can execute a living will. And under the state's statutes, health care providers are obligated to comply with the person's health care directive. New York, on the other hand, does not provide for "living wills" but does allow a competent person to designate a "health care agent" by execution of a "health care proxy." Thus, under New York law, a living will could serve as the basis for a health care agent to instruct physicians not to continue artificial, life-sustaining measures but is not itself an enforceable directive to doctors. Finally, had Terri Schiavo signed a living will in Indiana, her living will would have been worthless because under Indiana law a doctor has to certify that someone's condition will cause him or her to die in a short period of time in order for a living will to be effective--which is not likely for those in a persistent vegetative state. In the end, the best advice is for people to seek guidance from competent counsel in order to determine the law in their own state.
Third, you should be aware that in most states the law allows doctors and hospitals to refuse to follow your health care directive for reasons of conscience. For example, although Virginia's statutes do not require physicians to follow the terms of an advance directive or "do not resuscitate" order, they do require that physicians who do not wish to follow the directive transfer the person to another physician who will do so.
Fourth, while the prospect of a no-cost living will form that can be downloaded and filed away might be tempting, if it does not meet your state's requirements and is not properly signed and notarized before witnesses, it may not stand up to medical and legal scrutiny. If you really want to provide your family with guidelines they can rely upon, spend the time and money to have it done right. This means securing a competent attorney to assist you.
And fifth, make the time to sit down with your family and discuss these end-of-life issues. Hopefully, by gaining a clear understanding of your wishes, your loved ones can avoid the pain and uncertainty that Terri Schiavo's family had to deal with.
For families forced to make difficult decisions about end-of-life issues involving their loved ones, there can never be a quick or easy answer. Yet if politicians really want to help families that are forced to grapple with these issues, our representatives in Congress would do well to spend some time researching the various state statutes and proposing national guidelines for helping families deal with such life and death issues.
According to the San Francisco Chronicle, only about 25 percent of people in the United States have filled out living wills or designated someone to make medical decisions for them in the event they are unable to do so. However, the U.S. Living Will Registry in New Jersey, which stores living wills and advance directives so they can be accessed electronically by doctors and hospitals, reported that registrations nearly doubled in the last week--a clear indication that Americans want some say in the way they live or die.
A living will is a document that expresses a person's end-of-life wishes, providing instructions governing what treatment you do or do not want in case of apparently terminal illness. Living wills can be used to state that a person does not want any life-sustaining treatment if it would serve only to artificially prolong the person's life. They can also provide that the person wants his or her life to be prolonged to the greatest extent possible. In some states, a woman's living will can even provide that if she is pregnant, life-sustaining procedures should not be withheld if it is possible for the fetus to develop to birth.
Understandably, few people want their loved ones put through the kind of emotional turmoil that Terri Schiavo's have undergone. But before you download that living will form off the internet, there are a few things you should be aware of.
First, a living will isn't much good by itself. According to Dr. Joseph Barmakian, president of the Living Will Registry, while living wills are very specific about some measures doctors should or should not take if the patient is permanently unconscious or terminally ill, they don't adequately cover other scenarios. In many states, doctors are also not required to obey living wills. In fact, they may even be prohibited from doing so in the absence of other required documents.
Second, you should carefully consider executing a medical power of attorney, power of attorney for health care or health care proxy, which names someone as your agent and permits that person to make medical decisions for you if you cannot do so. Although some experts stress the importance of appointing a medical power of attorney in addition to creating a living will, even that is no guarantee that your end-of-life wishes will be obeyed since the requirements for the enforceability of health care directives vary greatly from state to state. For example, Arizonans have a variety of options for expressing their desires should they become incompetent or have an incurable condition. A person can execute a health care power of attorney to make health care decisions on his or her behalf, or a person can execute a living will. And under the state's statutes, health care providers are obligated to comply with the person's health care directive. New York, on the other hand, does not provide for "living wills" but does allow a competent person to designate a "health care agent" by execution of a "health care proxy." Thus, under New York law, a living will could serve as the basis for a health care agent to instruct physicians not to continue artificial, life-sustaining measures but is not itself an enforceable directive to doctors. Finally, had Terri Schiavo signed a living will in Indiana, her living will would have been worthless because under Indiana law a doctor has to certify that someone's condition will cause him or her to die in a short period of time in order for a living will to be effective--which is not likely for those in a persistent vegetative state. In the end, the best advice is for people to seek guidance from competent counsel in order to determine the law in their own state.
Third, you should be aware that in most states the law allows doctors and hospitals to refuse to follow your health care directive for reasons of conscience. For example, although Virginia's statutes do not require physicians to follow the terms of an advance directive or "do not resuscitate" order, they do require that physicians who do not wish to follow the directive transfer the person to another physician who will do so.
Fourth, while the prospect of a no-cost living will form that can be downloaded and filed away might be tempting, if it does not meet your state's requirements and is not properly signed and notarized before witnesses, it may not stand up to medical and legal scrutiny. If you really want to provide your family with guidelines they can rely upon, spend the time and money to have it done right. This means securing a competent attorney to assist you.
And fifth, make the time to sit down with your family and discuss these end-of-life issues. Hopefully, by gaining a clear understanding of your wishes, your loved ones can avoid the pain and uncertainty that Terri Schiavo's family had to deal with.
For families forced to make difficult decisions about end-of-life issues involving their loved ones, there can never be a quick or easy answer. Yet if politicians really want to help families that are forced to grapple with these issues, our representatives in Congress would do well to spend some time researching the various state statutes and proposing national guidelines for helping families deal with such life and death issues.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
Publication Guidelines / Reprint Permission
John W. Whitehead’s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact staff@rutherford.org to obtain reprint permission.
