State laws governing "advance directives" erect many barriers that make it difficult or impossible for individuals . . .Read more
Schiavo Case Underscored Uncertainties in End-of-Life Planning
- March 31st, 2005
The long legal battle over the fate of Terri Schiavo cast a much-needed spotlight on the importance of medical directives like living wills for end-of-life planning. But the case has also underlined the unfortunate reality that even the best-laid plans may not be sufficient.
Like two-thirds of Americans, Ms. Schiavo had no living will when, at age 26, a heart attack cut off oxygen to her brain and she fell into what doctors characterized as a "persistent vegetative state." Because Ms. Schiavo lacked a living will -- in which individuals can communicate their end-of-life wishes if they are unable to do so themselves courts had to rely on her husband Michael's assertions that Ms. Schiavo would not have wanted to have her life prolonged. The courts ultimately agreed with Mr. Schiavo and appointed him as her guardian, giving him the power to make health care decisions for her.
In legal terms, at this point Ms. Schiavo had what she should have had all along: the equivalent of a living will and someone to ensure that her wishes would be carried out (called a health care proxy or health care power of attorney). And yet still her case went on, with her parents able to continue fighting to keep her alive.
The lesson is that despite an individual's best efforts to make their end-of-life wishes known, determined family members can always tie things up in court. It's just that they will be less likely to do so if the ill person's wishes are clearer than Terri Schiavo's were. In her case, her parents challenged her husband's account of her wishes up to the very end since she did not put them in writing. In addition, family members in other cases would not be as likely to garner the political support that Ms. Schiavo's parents received in this matter.
Another difficult question raised by the Schiavo case is, when is someone beyond hope? Was Ms. Schiavo in a persistent vegetative state, or something else? Was she occasionally responsive, as her parents claimed, or were her apparent reactions to loved ones merely reflexive, as doctors maintained. The case is a reminder that in an age of medical and technological miracles, there often is no clear line separating life and death.
Although the Schiavo case made clear that there are no guarantees and many gray areas, the best way to ensure that your end-of-life wishes concerning medical treatment will be respected is to create a living will and appoint someone you trust who will have the legal authority to ensure your wishes are carried out. If her case serves to awaken more Americans to the need for such advance planning, Terri Schiavo's legacy will have been profound indeed.
A living will should be just one part of an overall estate plan. For estate planning, contact a qualified elder law attorney in your area. Living wills are also available from The National Hospice and Palliative Care Organization and Aging with Dignity.
For more on living wills and other medical directives, click here.
Local Elder Law Attorneys in Ashburn, VA
Margaret A. O'Reilly, PC
Margaret A. O’Reilly is an estate planning and elder law attorney with over thirty-five years of legal experience. Attorney O’Reilly graduated from Duke University with a degree in psychology, and received her law degree from Northeastern University School of Law in Boston, Massachusetts. For over 15 y...
Ron M. Landsman, P.A.
Ron M. Landsman has been practicing elder law since 1983, before it was known as elder law, originally with Landsman and Laster, Washington, D.C., then Landsman, Eakes and Laster, also in Arlington, VA, and since 1990 in his own practice in Montgomery County, Maryland. He has been among the most active members of the...
The Law Firm of Evan H. Farr, P.C.
In practice since 1987, Fairfax Attorney Evan Farr is widely recognized as one of the leading Elder Law, Estate Planning, and Specials Needs attorneys in Virginia and one of foremost experts in the Country in the field of Medicaid Asset Protection and related Trusts. Evan Farr has been quoted or cited as an expert by n...