Every adult in North America runs the risk of becoming incapacitated and
treated as Terri Schaivo was.
This can be prevented. "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, the court interpreted the
U.S. Constitution as a "living document."
This guarantees a right to privacy and limits
the rights of state governments to make laws that intrude excessively in a
person's life. A few Justices of the Supreme Court, including Justices 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. They feel that each state should
have almost complete freedom
to regulate behavior as it sees fit. President Bush is expected to nominate three or four
Justices to the court during his 2004-2008 term. He has indicated that he will
select nominees who have the same legal philosophy as Justices Scalia and Thomas. If this happens, then
some states may pass legislation which prevents the use of living wills in their
jurisdiction.
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.
