Health Care Proxy And A Living Will
Can you bear the thought of a 10 year legal battle among your family members when you die or become disabled?
How about the possibility that end of life decisions might be made not by you, and not even by your loved ones, but by a judge that you never met?
That’s what happened to Terri Schiavo. Terri collapsed at home in February 1990 when her heart stopped temporarily which cut off oxygen to her brain. She has been in a coma ever since. Doctors believe the incident occurred due to a potassium imbalance. She was only 26-years-old and had no children.
Her husband, Michael, became her legal guardian and sued doctors for misdiagnosing her condition.
In November 1992, a jury awarded $700,000 for her care and $300,000 for Michael’s damages. In July 1993, Terri’s parents, who were concerned about Michael’s motivation, filed an action to remove him as guardian. That case was dismissed.
However, it marked the beginning of an eleven year fight over control of Terri’s care. In May 1998, Michael filed his first request to remove Terri’s feeding tube. Her parents objected and fought to keep the tube in place. Finally, after five years of court appeals, the Florida 2nd District Court of Appeal in June 2003, found that all reasonable efforts had been made to treat Terri and that after over 10 years on a feeding tube without any official signs of brain functions, her recovery was not reasonably foreseeable.
There were several additional appeals, including appeals to federal court. On October 15, 2003, doctors removed Terri’s feeding tube. On October 21, 2003, Governor Jeb Bush urged the Florida Senate and House to pass “Terri’s Law”, allowing him to intervene to force doctors to replace the feeding tube. Michael’s attorneys filed suit alleging Terri’s Law was unconstitutional. The trial judge ruled in his favor.
On September 23, 2004, the Florida Supreme Court agreed that the law was indeed unconstitutional and that the state government had improperly intruded on the power and sovereignty of the courts. The ultimate issue was whether Terri would have preferred to remain on life support treatments (a feeding tube) even if there was no medically recognized hope of recovery.
However, she never expressed her intentions in a living will. Many people like Terri have not done any estate planning because they don’t have much money, have all their assets jointly held either with a spouse and/or with the spouse designated as a beneficiary and/or don’t want to spend money on legal fees.
Unless you create a proper estate plan now, you run the risk that if something happens to you and/or your spouse, there will be a costly and bitter fight among your family members.
Not only end of life issues, such as living wills and health care proxies, but also issues surrounding the passing of wealth must be in writing.