Elder Law - Medicaid Planning - Wills - Trusts - Probate - Guardianship

What Can Be Learned from Terri Schiavo?

            The media recently followed the drama in Florida regarding Terri Schiavo.  It was an agonizing story of the pain of a husband trying to implement his wife’s wish and the dedication of parents who are trying to keep their daughter alive.  What can be learned from Terri Schiavo?

 1.         Make sure wishes are in writing.    Unless otherwise specified in writing, all known medical technology to sustain and keep us alive as long as possible may be provided.  Oklahoma law has an Advance Directive for Health Care.  This is a form our Senators, Representatives and Governor approved after much discussion, negotiation and compromises.  It is limited in scope and effectiveness.   A copy  of  the  Oklahoma  form  for Advance  Directive  for Health Care can be accessed at: 

http://www.okbar.org/public/brochures/advanced3.pdf

 2.         Give a copy of your Health Care Directive to your Doctor.  For your wishes to be implemented, your Doctor must know what they are.  We recommend that a copy of your Health Care Directive be in your Doctor’s medical records.  If you go to the hospital or nursing home, be sure a copy of your Health Care Directive is in their files also.

 3.         Determine who will best implement your wishes.  Most likely if you are in a terminal condition, persistent vegetative state or permanent unconscious coma, you will be unable to tell your medical providers what care you want.  Thus it is critical that you name someone or more than one person to act for you.  This is done by signing a Health Care Power of Attorney.  The persons that you trust most in the world to make your health care decisions should be named as your health care agents.  Your documents should clearly reflect who should make health care decisions and that it be up to date.  We recommend more than one agent, all with current individual power.  For example, your Durable Health Care Power of Attorney can appoint your spouse and children as your agents.  This way whoever is available can act for you.  No proof is required that someone first named is not available or capable of acting.  If there is a disagreement as to what action to take, the family will discuss the issues.                                                             

4.         Give a copy of your Durable Health Care Power of Attorney to your Attorney in Fact.  If you appoint somebody to make decisions for you, they must know it and they must have access to the document.  Thus, we recommend advising them of your designation and giving them a copy of your Power of Attorney.  This is not necessary, just recommended from our experience.  And, we also recommend that you carry a billfold card or a note that is close to your health care insurance card that indicates that you have a health care directive and a power of attorney. 

5.         Talk to your family.  It is important to express your wishes to your family so that they know what you want.  Just as Terri Schiavo told her husband and her brother-in-law, you must do the same.  Unfortunately, Terri’s parents did not hear her wishes and thus the reason for her family’s extended court battle.  Your family also should know where your documents are and who will be making your decisions for you.  If you do not believe that your family will agree with or honor your wishes, immediately seek the advice of an elder law attorney who is well versed in helping people implement their wishes.  Special protections can be put into place to insure your wishes are met.             

            Financial and medical decisions for a person unable to act for himself/herself are extremely important.  We recommend extensive discussions and understanding before the documents are prepared.  These documents will also likely avoid the need for expensive guardianship proceedings upon a person’s incapacity.  These important documents should not be “just a form.”  The “form” may have the wrong or excluded provisions.  The State form is very limited.

             Your documents “do” nothing.  They are only pieces of paper.  They empower your agents to act for you, but your agents must be informed and know how to exercise that power.  Finally, battling the ethics committee of a hospital or nursing home may require the assistance of a knowledgeable elder law attorney.

 Thought for the Day: A conclusion is simply the place where you got tired of thinking. 

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