The Living Will: A Lesson from the Terri Schiavo Case 


Terri Schiavo became a household name following court decisions that the Florida woman should be removed from life support despite objections from her parents and even President Bush. 


The courts eventually granted the wishes of Michael Schiavo, the 41-year old woman’s husband. 


What complicated the case, according to legal experts, was the fact that Terri Schiavo’s own wishes were never contained in what is called a living will. 


A living will is a legal document that expresses an individual’s decision on the use of artificial life support systems. These support systems are designed to sustain breathing, nutrition and hydration, among other things. 


Howard Krooks, chair of the New York State Bar Association Eldercare Division said that, as a direct result of the Schiavo case, living wills are increasingly in demand. 


“If there is anything great that came out of the Terri Schiavo media frenzy was that it brought wide-spread attention to living wills,” said Krooks, who is also a partner at the law firm Littman, Krooks and Roth in New York. 


For some people, living wills are a sensitive subject and may conflict with religious beliefs. 


However, for others, living wills have been increasingly in demand as a direct result of the Terri Schiavo case, said Krooks. 


As modern technology continues to advance, some people may appeal to the idea of making their final wishes known via a contract should they become sick and incapacitated to avoid leaving these difficult and sometimes ethically troubling decisions up to family and friends. 



Q: Who should have a living will? 

Krooks: I would recommend that anyone over the age of 18 prepare a living will. 


Q: What is the difference between “a final will and testament” and “a living will”?

Krooks: A final will and testament is carried out after the person is already deceased. For example, a final will and testament will determine who will obtain the deceased party’s personal property and belongings. 

A living will applies to what type of end of life treatment a person would prefer. It allows a person to state how far they want medical care to go if they become severely ill or injured and are unable to function without assistance. 


Q: Is it difficult to create a living will? What are the first steps? 

Krooks: The first step is to decide if you are going to complete the form on your own or if you are going to seek the advice of a legal professional. The process can be complicated. However, if you are going to do it yourself be certain to be aware of a section that specifically deals with nutrition and hydration. This section determines whether or not you wish to receive artificial life support in the form of food and or water. 

A health proxy is another tool. It determines who will be responsible for your healthcare and making decisions on your behalf. 


Q: Once you have completed a living will when does it become “a legal document”? 

Krooks: You must sign the document along with a witness. It is important to have several signed copies. Be sure to give copies to your doctor, spouse, relatives, clergy and anyone who will be involved in the final decision-making process. 


Q: Do doctors always honor a living will? 

Krooks: Doctors are legally required to follow the directions of a living will. However, they are also required to sign the Hippocratic Oath and to sustain life whenever possible. An official living will is a tool that should not be overridden, not even by a doctor. 

Many state bar associations provide information on living wills on their websites. These state sites are listed with the American Bar Association online at www.abanet.org


Sample Living Will from the New York State Bar Association:


NEW YORK LIVING WILL 

I, __________________________________, being of sound mind, make this statement as a directive to be followed if I become permanently unable to participate in decisions regarding my Medical care. These instructions reflect my firm and settled commitment to decline medical treatment under the circumstances indicated below. 

I direct my attending physician and other medical personnel to withhold or withdraw treatment that serves only to prolong the process of my dying, if I should be in an incurable or irreversible mental or physical condition with no reasonable expectation of recovery. 

These instructions apply if I am: a) in a terminal condition; b) permanently unconscious; or c) if I am conscious but have irreversible brain damage and will never regain the ability to make decisions and express my wishes. 

I direct that treatment be limited to measures to keep me comfortable and to relieve pain, including any pain that might occur by withholding or withdrawing treatment. While I understand that I am not legally required to be specific about future treatments, if I am in the condition(s) described above, I feel especially strong about the following forms of treatment. 

I do not want cardiac resuscitation. 

I do not want mechanical respiration. 

I do not want tube feeding. 

I do not want antibiotics. 

I do want maximum pain relief. 



Other instructions (insert personal instructions): 
I HEREBY APPOINT 


Name: 

Address: 

Phone Number: 

as my health care agent to make all health care decisions for me in conformity with the guidelines I have expressed in this document. I direct my agent to make health care decisions in accordance with my wishes and instructions as stated above or as otherwise known to him or her. I also direct my agent to abide by any limitations on his or her authority as stated above or as otherwise known to him or her.
In the event my health care agent is unable, unwilling, or unavailable to serve as such, then I appoint as my substitute health care agent (with the same powers that I have heretofore enumerated). 

Name: 

Address: 

Phone Number: 

I understand that unless I revoke it, this living will and health care proxy will remain in effect indefinitely. 
These directions express my legal right to refuse treatment, under the laws of New York. Unless I have revoked this instrument or otherwise clearly and explicitly indicated that I have changed my mind, it is my unequivocal intent that my instructions as set forth in this document be faithfully carried out. 



Signature: 

Address: 

Date: 

Statement By Witnesses (Must Be 18 or Older) 

I declare that the person who signed this document is personally known to me and appears to be of sound mind and acting of his or her own free will. He or she signed (or asked another to sign for him or her) this document in my presence. 

Witness: 

Address: 

Witness: 

Address: 



KEEP THIS SIGNED ORIGINAL WITH YOUR PERSONAL PAPERS AT HOME. GIVE COPIES OF THE SIGNED ORIGINAL TO YOUR DOCTOR, FAMILY, LAWYER AND OTHERS WHO MIGHT BE INVOLVED IN YOUR CARE.
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