Terri Schiavo: The lesson from the loss

April 11, 2005

If we can all agree upon one thing, it is that similar situations can be avoided with advance planning and discussion with family members. Elder Law attorneys are uniquely qualified to assist individuals and their families when confronted with difficult decisions regarding medical treatment, or the withholding of medical treatment. Although court-appointed guardians can usually make healthcare decisions, including end-of-life decisions, an individual is far better served by executing an advance directive which can be in the form of a living will, health care proxy or a combination of these documents. A living will is an expression of how the individual wants to be treated during end-of-life care. The health care proxy is a delegation of authority to a third party to make healthcare decisions for the individual when the individual is unable to do so. All 50 states and the District of Columbia impose statutory requirements on the content and execution of health care proxies for them to be valid. However, New York does not have statutory law regarding the creation of a living will.

Should an individual use a Health Care Proxy and/or a living will? Some claim that the use of a living will is a failure because individuals lack the knowledge to make intelligent decisions in advance, and so their preferences are not adequately articulated in the living will. Others note that too often living wills are not accepted by third parties. Since New York does not recognize living wills, they are instead treated as a statement of the individual’s values. Davidow, Davidow, Siegel & Stern recommend a combination of a living will and a health care proxy; we call this an advance directive. The living will is needed to state the individual’s preferences and the health care proxy is needed to appoint an agent as well as a successor agent, and authorize the agent to implement the individual’s preferences.

Davidow, Davidow, Siegel & Stern discuss with all their clients, how to make the existence of the client’s advance directive known to the client’s family and physicians. At a minimum, the client should have a candid and frank discussion of the advance directive and the client’s healthcare preferences with the client’s immediate family, healthcare agents and primary care physician, and provide each of them with copies of their advance directives.