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“If Only . . .”: Why You Owe it to Yourself and

Your Family to Execute an Advance Medical Directive

By John J. Campbell, Esq., CELA

            Terri Schiavo was only 26 years old in 1990, when her heart stopped as the result of an eating disorder.  Terri suffered serious brain damage that left her in a persistent vegetative state with little, if any, hope of recovery.  Terri could breath on her own, but required artificial nourishment and hydration because she could not swallow.  Terri’s husband believed that Terri would not want to continue living in that state, so he sought to have her feeding tube removed.  Terri’s parents believed that Terri would want to continue living in the hope that someday she could be cured. 

            And so the ordeal began.  Terri’s husband and parents began litigating over Terri’s fate in 1998 in the Florida Courts.  Surely, you or someone you know has read about it in the papers or has heard about it on the evening news over the past several years.  As of the writing of this article in January, 2005, that litigation rages on. 

            In the interim, there were trials, hearings and appeals to determine whether Terri would want to continue receiving medical treatment merely intended to keep her alive without a reasonable chance of recovery or cure.  Finally, the Florida courts entered an order in 2003, directing that Terri’s feeding tube be removed. 

            Within a week, Governor Jeb Bush successfully lobbied the Florida legislature to pass “Terri’s Law”, a special law directed specifically at Terri’s case, requiring that her feeding tube be reinserted.  That law was successfully challenged in the Florida courts, ultimately resulting in a holding by the Florida Supreme Court that the law was unconstitutional.  On January 24, 2005, the United States Supreme Court declined to hear the appeal from the Florida Supreme Court’s final decision.

            Terri’s law is no more.  The battle is over, but not the war.  Motions and appeals are still pending in the Florida courts that must be resolved before the final outcome is known.  In the mean time, Terri continues in her persistent vegetative state, kept alive by artificial nourishment and hydration. 

            It seems that everyone involved has an opinion or belief as to what Terri would have wanted.  Surely, all of those persons are well-meaning and believe that they know Terri’s wishes and are looking after her best interests.  However, in all the arguments before all the courts, in all the pleadings and briefs, there is one opinion that has not been and probably never will be expressed – Terri’s.  Ironically, the one voice that could silence all of the controversy and speculation once and for all cannot speak. 

            If only Terri had executed an advance medical directive while she was still competent, her family might have been spared 7 years of litigation and all of the expense, stress and heartbreak that has gone along with it.

            You and every competent adult in the United States have a legal right to refuse unwanted medical treatment.  This means you can accept, question, reject, or withdraw any medical procedures or treatments offered to you. 

            If you become incapacitated (unable to make decisions), someone else may make decisions concerning your medical treatment for you.  If you execute an advance medical directive while you still have the legal capacity to do so, that directive would provide guidance to the person making those decisions.  The directive might even determine who would make those decisions for you.  However, if you become incapacitated and have not executed an advance medical directive, you and your loved ones could very well find themselves having to resort to the courts.

            There are two legal documents in virtually every state that allow you to make advance medical directives: the Living Will and the Medical Durable Power of Attorney.  You can take affirmative steps now to preserve your right to make medical decisions in case you later become incapacitated.

LIVING WILL

            A "Living Will" is a document which says that, if you are terminally ill or injured and unconscious, comatose or incompetent, you do not want to be kept alive by medical procedures which merely postpone the moment of death.  Although a Living Will is very limited in scope, it is nonetheless a powerful statement of your intent. 

            A Living Will may be executed by any competent adult who is eighteen (18) years of age or older.  The will must be in writing, signed by you or signed by another in your presence and at your request.  The signing must be in the presence of at least two witnesses, who must also sign.  A witness cannot be an heir or one who stands to inherit, and cannot be a doctor, nurse, or other employee of the attending physician or treating facility.  You may revoke the Living Will at any time:  orally, in writing, or by burning, tearing, canceling, obliterating, or destroying it.

Once the Living Will is executed, it can be applied only in restricted situations.  You must be certified as being in a terminal condition by a physician (by 2 physicians in Colorado); have been unconscious, comatose or incompetent for the time specified in your state’s Living Will statute (7 days in Colorado); and you usually cannot be pregnant.  The physician must give notice to your nearest family members and wait a statutorily prescribed period of time, usually 48 hours, after certification for any response.  If there is an objection, a guardian is appointed for you by the court and a hearing is held.  After the foregoing procedure has been followed, with court permission the physician may withhold life support. 

            Withholding life support does not normally include withholding pain medication.  Usually, you may choose in the Living Will whether withholding life support includes withholding artificial nourishment.

            Your attending physician must honor the directives of the Living Will or relinquish your care to another physician who will.  The statute specifically states that death due to compliance with the Living Will is not suicide or homicide.

            A Living Will only applies in situations where death is imminent.  It does not apply where death is not imminent, but you are unable to make medical decisions for yourself.  Because a Living Will is so limited in application and does not appoint an agent or surrogate on your behalf, it is not the best form of advance medical directive.  It is far better to include Living Will provisions within a Medical Durable Power of Attorney. 

MEDICAL DURABLE POWER OF ATTORNEY

            A Medical Durable Power of Attorney (MDPOA) appoints an agent to speak for you about medical treatment decisions when you cannot.  An MDPOA has much wider application than a Living Will because it does not require that you have a terminal condition.  There is also much more flexibility in an MDPOA because you can set forth, in your own words, your concerns about "quality of life" issues and other specific wishes about your care.  A Medical Durable Power of Attorney can also contain Living Will provisions, consolidating two advance medical directives into a single document.

            In some states, such as Colorado, health care providers are required to comply first with your wishes, then the statements in a Living Will if your wishes cannot be expressed, and finally the decisions of your agent under an MDPOA.  Health care providers are protected from any liability for either following your wishes as stated in a Living Will or following the instructions of an agent under an MDPOA.

            A previously executed Living Will could take precedence over an MDPOA.  This means that a previously executed Living Will could nullify the authority given to an agent under an MDPOA in any situation where the Living Will would apply.  Since the application of a Living Will is much more restrictive than the application of an MDPOA, you may want to consider the following:

            1.     If you have both an MDPOA and a Living Will, revoke your Living Will and execute a new

                    MDPOA containing Living Will provisions; or

          2.     If you don't have either an MDPOA or a Living Will, you may want to execute an MDPOA

                  containing Living Will provisions and not execute a separate Living Will at all.

PROXY MEDICAL DECISION-MAKER

            Some states have enacted statutes which provide that if you become incapacitated and you did not previously sign an advance medical directive, a proxy can make some medical decisions for you.  For example, under Colorado’s Proxy Medical Decision-Maker statute, your physician must first try to locate as many of the following people as possible:  your spouse, your parent, your children or grandchildren, and your close friends.  They, in turn, must notify others of whom the physician may have been unaware.  Next, those family members and friends select a proxy medical decision-maker for you who should be the person most likely to know of your wishes regarding medical treatment decisions.  Then the proxy has authority to make limited medical treatment decisions for you.  The proxy may not withdraw artificial nourishment or hydration "tube feeding" except under certain limited circumstances specified by statute.

            Four criteria must be met in order for a proxy to withhold or withdraw artificial nourishment or hydration on behalf of a patient:  (1) the attending physician and (2) a second independent physician trained in neurology or neurosurgery (3) certify in the patient's medical record that the continuation of artificial nourishment or hydration will only prolong the act of dying and (4) it is unlikely that the continuation of such treatment will result in restoring the patient to independent neurological functioning.

ADVANCE CARDIOPULMONARY RESUSCITATION (CPR) DIRECTIVES

            Most states have passed legislation allowing you to create a CPR Directive which directs that CPR not be administered to you by emergency medical service personnel.  If you want a CPR Directive, it also is advisable, but not required, that you wear either an official CPR Directive necklace or bracelet to clearly notify emergency medical personnel of your wishes regarding CPR.  No substitutions or reproductions of these items will be effective to prevent CPR.

            The CPR Directive is a special form that you can usually obtain from your family physician, a home health agency, or a licensed or certified health care facility.  If you do not have access to one of these sources, you sometimes can obtain a CPR Directive from a local hospital.  If you live outside of a major metropolitan area, you should be able to obtain a CPR Directive from your county public health nurse or public health department.

            A typical "CPR Directive form" consists of two documents:  a three-part form, plus an additional form for you to order your CPR Directive bracelet or necklace.  You should retain the original executed copy of the CPR Directive form, as only the original unaltered CPR Directive, or an unaltered CPR Directive bracelet or necklace is valid to prevent CPR.  The second copy will be sent to the company that will send you your CPR Directive bracelet or necklace.  The third copy of the CPR Directive will be retained by your physician in your patient file.  Your physician is required to:

                    1.       explain to you the expected consequence of withholding or withdrawing CPR;

2.                                         2.       advise you that if the CPR Directive or bracelet or necklace is not apparent and

                                                      immediately available, or has been altered, emergency medical services personnel will

                                                      initiate CPR;

3.                                         3.       explain to you how and by whom the CPR directive may be revoked; and

4.                                         4.       sign and date your CPR Directive form.

CONCLUSION

            The laws of every state provide some means to create an advance medical directive.  Whether you choose to execute a Living Will, a Medical Durable Power of Attorney, an Advance CPR Directive, or all three, it could turn out to be one of the most important choices you have ever made.  It is your best chance in a situation where you cannot speak for yourself to ensure that your voice is heard regarding what medical care you wish to receive or decline.

            Advance medical directives are among the most powerful legal documents you can create.  However, your advance medical directive will be useless if your doctor or medical facility is not aware of its existence.  Keep your original Living Will or Medical Durable Power of Attorney in a safe place – preferably a safe deposit box.  Make certain that you provide copies of those documents to your primary care physician, to any other physician who treats you and to any hospital or medical facility where you might seek and receive care.  Your original Advance CPR Directive should be displayed prominently so that paramedics or medical personnel will know immediately whether to administer CPR in a medical emergency; and always wear your necklace or bracelet.

            You should also take time to discuss the contents of your advance medical directives with your family and friends.  You should especially discuss your directives with anyone whom you may appoint as your agent under an MDPOA.  The more thoroughly you make your wishes known, the better chance your wishes will be followed if you are incapacitated.

            You owe it to yourself and your loved ones to consider creating an advance medical directive, regardless of your age or your current health.  Unexpected tragedies can and often do happen without any warning.  If something happens to you, would you want to leave your family and friends wondering:

“If only. . .”?

EPILOGUE

Law Offices of John J. Campbell, P.C.

4610 S. Ulster St., Ste. 150

Denver, Colorado 80237

(303) 290-7497

(720) 200-2771 Fax

jcampbell@jjcelderlaw.com

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© 2005-2007 Law Offices of John J. Campbell, P.C.