Euthanasia and Terri Schiavo

About living wills

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About Living Wills:

Every adult in North America runs the risk of becoming incapacitated and treated as Terri Schaivo was.

This can be prevented. According to FindLaw.com:

"In 1990, the U.S. Supreme Court decided that every individual has the constitutional right to control his or her own medical treatment.₁ The Court further held that medical personnel must follow 'clear and convincing evidence' of a person's medical treatment wishes, even if the medical personnel or the patient's family do not share those wishes."

Unfortunately, this decision was based on the same foundational belief in the right of privacy that the Court used in Roe v. Wade (1973, to give women limited access to abortions) and Lawrence v. Texas (2003, which decriminalized private, consensual same-sex behavior). In all three cases, a majority of the Justices on the court interpreted the U.S. Constitution as a "living document" that guarantees a right to personal privacy and that limits the rights of state governments to make laws that intrude excessively in a person's life. Four Justices of the Supreme Court -- including Chief Justice John Roberts , and Justices Alito, Scalia, and Thomas -- view the constitution as an enduring document. They interpret it according to the intent of the authors at the time it was written. They don't necessarily accept the existence of a right of privacy. Since these four Justices tend to vote as a block, any future case involving personal medical rights might well overturn the 1990 court decision. If this happens, then then some states may pass legislation which prevents the use of living wills in their jurisdiction.

Currently, considerable protection may be currently obtained by preparing an Advance Directive (a.k.a. Living Will, Durable Power of Attorney for Health Care, Personal Health Care Directive, etc). This document specifies the person's wishes in the event that they cannot communicate later in life. They allow a person to nominate a proxy to act on their behalf, and make detailed medical decisions. These documents do not offer absolute protection; they are not necessarily valid in every jurisdiction. However, they constitute the only method available that has a chance of guaranteeing that one's wishes are at least considered. They also take a tremendous emotional load off of the next of kin who otherwise might have to guess what the patient's wishes are.

Creating and using a living will:

Unfortunately, when FindLaw conducted a national survey of 1,000 American adults, they found that 67% lack a living will. (Margin of error = ±3 percentage points). ₂

 USlegalforms.com™ comments:

"The Living Will allows you to make the decision of whether life-prolonging medical or surgical procedures are to be continued, withheld, or withdrawn, as well as when artificial feeding and fluids are to be used or withheld. It allows you to express your wishes prior to being incapacitated. Your physicians or health care providers are directed by the Living Will to follow your instructions. You may revoke the Living Will prior to becoming incapacitated...." ₃

LeanLegal.com sells Canadian do-it-yourself legal forms, including Personal Health Care Directives. They recommend:

"You should carry something in your wallet which indicates that the personal health care directive exists. The directive should be stored with other important documents in safe place at home or in a safe deposit box. Your Proxy should have access to it." ₄

FindLaw recommends that:

"...you should provide copies of the documents to your physicians, hospital, health care plan, close relatives, and the person named as your proxy in your durable health care power of attorney....You can change your living will and durable health care power of attorney at any time. However, it is important that these documents be changed in a legally-binding written document. It is advisable to review these documents from time to time to ensure that they still accurately reflect your wishes. If they do not, you should consult with an estate planning attorney regarding how to make the changes you desire." ₅

Free living will forms:

The National Hospice and Palliative Care Organization, is a non-profit group which supplies free blank forms for use in various U.S. states. You can request a copy via Email if you specify the state or states for which you need a form, and your mailing address. They have a  HelpLine at (800) 658-8898 through which you can verbally request forms. This number can only be dialed from within the U.S.

A recommendation:

Because of the critical nature of these directives, we strongly recommend that you arrange to have your lawyer prepare your forms, or at least have your lawyer review any forms that you purchase and fill out. Some jurisdictions have very specific requirements about witnessing and the selection of a proxy to act in your behalf. An error here could make the document worthless.

References used:

1.  Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (1990). http://caselaw.lp.findlaw.com/
2. "Living Wills," Find Law, at: http://news.findlaw.com/
3. "Living Will Forms," at: http://www.uslegalforms.com/
4. "Personal Health Care Directive Tutorial," LeanLegal.com, at: http://www.leanlegal.com/
5. "Dying with Dignity: Medical Treatment," FindLaw, at: http://public.findlaw.com/

Additional information:

FindLaw has an information section on living wills. See: http://news.findlaw.com/

Copyright © 2005 by Ontario Consultants on Religious Tolerance
Originally posted: 2005-MAR-21
Latest update: 2010-SEP-03
Author: B.A. Robinson