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March 21, 2005
Terri Schiavo – Lessons Learned
Terri Schiavo is the 41 year old woman whose life and death battle has been in the news recently. The attention this case has received has resulted in many recent phone calls from clients wanting to avoid this situation. Here is my advice:
If you were to get sick, who would make your medical decisions? Would it be your spouse, or family, or your local Probate Court Judge? Marriage does not entitle a spouse to make medical decisions for the other spouse. Family, unless named in a Health Care Proxy, are also not allowed to make these decisions. This leaves you with your local Probate Court Judge. This isn’t necessarily bad, because the Judge will do the best he can to try and determine what you would have wanted. So why not make a Health Care Proxy and skip all the fuss. This way you, or someone you know, that understands what your medical wishes are, will be there to make any decision that is necessary.
The right to refuse medical treatment is not a fundamental right guaranteed by the Constitution but the right to refuse unwanted medical treatment is part of an individual’s fundamental Constitutional right to liberty. The leading case in this area is Union Pacific Railway v. Botsford 141 U.S. 250, decided in the year 1890. The court said “no right is held more sacred, or is more carefully guarded… then the right of every individual to the possession and control of his own person, free from all restraint or interference of others…”
In 1978 an elderly woman had her leg amputated. It was later learned that she needed to have her other leg also amputated to save her life. She had other health problems and decided enough was enough, she did not want the operation. Her daughter went to court for authority to conduct the operation. The probate court granted the authority for the operation and the mother appealed. The appellate court reversed and said that she is allowed to refuse medical treatment unless….”State interests” govern. “State interests” is a broad category of situations where one’s individual rights give way to something that is for the good of all people. Preservation of life and prevention of suicide are two examples of state interests.
In order to refuse medical treatment there must be “informed consent” on the part of the patient. “Informed” means that the patient must be informed about the treatment, alternatives and the possible outcomes. “Consent” means that the patient has the ability to understand the medical information that has been presented to him/her and the ability to communicate his/her wishes.
If you are like me, you don’t have a health care proxy. But this case has lit a fire for me. I’m going to do it. By next week I will have a health care proxy! I recommend that you do it to!
WHAT IS A HEALTH CARE PROXY?
A health care proxy is a document that states who will make your health care decisions if you are unable to do so yourself. The health care proxy should name an alternate incase the primary agent is unavailable. This is very important when elderly spouses name each other as the primary health care agent.
As of December 18, 1990, Massachusetts residents may elect to nominate someone to make their health care decisions for them if they are unable to do so themselves. It was on this date in 1990 that the Massachusetts Legislature passed section 201D, the Massachusetts Health Proxy Law and expressed their preference for proxy rather than living wills.
WHAT IS THE DIFFERENCE BETWEEN A HEALTH CARE PROXY AND A LIVING WILL
A living will is a document that contains your wishes for medical treatment if you are unable to communicate them yourself. They come in all shapes and sizes. I have seen one that has a grid that lists diseases on one side and possible treatments on the other side. You check off a box for what treatment you would want for each potential disease. To me this is a waste of time and far too complicated. First off, what happens if the disease you end up with is not on the list?
A Health Care Proxy is a nomination of someone to make your medical decisions, if you are unable to make them yourself. Our health care proxy, while not a living will, adds a common wish that can be modified to fit your particular wishes:
“I wish to live and enjoy life for as long as possible, but I do not wish to receive futile medical treatment. I would consider medical treatment futile if the treatment would only postpone my imminent death or prolong an irreversible coma or a permanent vegetative state. If my Agent determines that recommended medical treatment is futile, I request that my Agent refuse to give permission to initiate that treatment, and to withdraw the treatment if it has already been started. In less extreme situations, I do want my life to be prolonged and life-sustaining treatment to be provided or continued if my Agent believes that for me the expected benefits of the treatment outweigh its burdens. In making decisions about initiating or continuing any treatments or procedures, my Agent shall consider the relief of my suffering as well as the likely quality and duration of my life following treatment. In any case, I wish my Agent to be guided by my desire that all comfort measures be provided to me, so that my last days and hours are as easy and pain-free as possible. To the extent there may be a conflict among the goals, my Agent shall be the sole arbiter of what my choice would be”.
WHERE DO I GET A HEALTH CARE PROXY
FREE HEALTH CARE PROXIES – Senior Centers, hospitals, doctor offices and the Internet are your sources for free heath care proxies. Most of these places will help you fill out the form and provide the necessary two witnesses. On the Internet I went to www.massmed.org and printed out their Health Care Proxy for free. It looks pretty good. There are many other websites offering free Health Care Proxies. If you go on the Internet, please be sure that the Health Care Proxy is for use in Massachusetts.
ALMOST FREE HEALTH CARE PROXIES – Most law offices that deal with issues affecting the elderly prepare Health Care Proxies for a modest fee. Some attorney websites offer them for free. Our office charges a minimal fee of $50 for a health care proxy (free if you are unable to pay) that differs slightly from the free one mentioned above at massmed.org and is notarized. We notarize our health care proxies primarily in the event that you happen to be in another state that may have a notary requirement. The bottom line is that it should cost little or nothing for everyone to have a health care proxy.
This article gives general information and not specific advice on individual matters. Persons wanting individualized advice on matters discussed should contact an advisor experienced in those matters. To the extent this article provides information on legal matters, it is based on law in effect in Massachusetts on the date of posting (laws in effect in other states are often quite different).
Ronald H. Surabian is a CPA and attorney who works at the Elder Law Center in Saugus, Ma. He also holds a masters in accounting and a masters in tax law. He currently serves on the board of directors of the Massachusetts Chapter of the National Academy of Elder Law Attorneys.