A RedState Public Service Message
By Erick Posted in Law — Comments (8) / Email this page » / Leave a comment »
With the Schiavo case on many people's minds, here is a public service from RedState. Keep in mind, I practice law in Georgia. Consult with a lawyer in your state on this issue, but here is some practical information.
Most, if not all, states have both Living Wills and Durable Health Care Powers of Attorney ("DHCPOA"). These documents are not estate planning tools per se, but rather life planning tools. Both allow you to make decisions about your future health care in the present, before you go into a state of being where you cannot make such decisions.
The Living Will is the more general of the two documents. I encourage clients to do both, but a Living Will alone suits many people. A Living Will allows you, in a general way, to dictate the steps a medical care provider and your family should take when the time comes that you cannot direct those steps yourself. For example, if you are in a non-responsive state, do you want nourishment, hydration, only one, or none?1 If your heart stops, do you want to be resuscitated? If you are pregnant, do you want steps to be taken to save you or your child if only one is possible? A Living Will can provide the answers to these questions when you cannot.
A DHCPOA goes into more detail than a Living Will. In the DHCPOA, the form of which is generally set forth in a statute, an individual can direct that a certain person make the health care decisions for the individual when the individual is no longer able to do so himself. The DHCPOA allows the individual to restrict what steps can be taken, like a living will, but otherwise delegates healthcare decision making power to a named third party. Additionally, a DHCPOA usually allows a person to designate a third party as the individual's desired legal guardian should one become necessary -- and that person does not have to be the same third party who is designated to initially make healthcare decisions. Lastly, the DHCPOA allows potential future invalids to set out a chain of custody, i.e. if third party X dies, I want third party y to take over, etc.
Both life planning tools are beneficial in planning now for future life changing events. A local attorney can assist you, should you desire either document. Had Terry Schiavo had either document, we most likely would not be where we are today.
For further reference, you can review the form of a Georgia Living Will here and Georgia DHCPOA here.
1I have done many living wills for doctors and all of them direct through their living wills that, should they be in a vegetative state, they want food withheld, but never water. All have told me that you'll die without food, but withholding water, as is being done in the Schiavo case, is gruesome to see.
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A RedState Public Service Message 8 Comments (0 topical, 8 editorial, 0 hidden) Post a comment »
If Michael Shiavo was disputing his wife's estate, would he be successful with a similar level of documentation for his wife's desires and wishes?
People are saying that Michael's word is irrelevant because Terri never told her family and friends that she wanted to die if in such a state.
I have to admit I don't find that a strange situation. I'm not likely to tell my parents over Christmas dinner my wishes in the case of tragedy nor would I tell my friends over a few drinks and a football game. I would however tell my spouse, and expect her to follow my wishes.
Even though Michael has apparently moved on, I can't take that as evidence that he doesn't still love her on some level, and that he isn't genuinely attempting to execute her wishes.
its a bit of (conservative?) misinformation floating around the media that Michael is the 'only' person to have testified to the fact that Terry wouldn't have wanted this. According to the GAL report (commisioned for Gov. Bush on this issue - pdf here: http://abstractappeal.com/schiavo/WolfsonReport.pdf)
Michael's brother and Michael's brother's wife also testified to her wishes:
"The hearings and testimony before the trial court leading to the decision to discontinue artificial life support included admitted hearsay from Theresa's brother-in-law (Michael Schiavo's brother) and his wife (Michael's Schiavo's sister-in-law) along with testimony from Michael.
The testimony of these parties referenced specific conversations in which Theresa commented about her desire never to be placed on artificial life support. The testimony reflected conversations at or proximate to funerals of close family members who had been on artificial life support. The context and content of the testimony, while hearsay, was deemed credible and consistent and was used by the court as a supporting bases for its decision to discontinue artificial life support."
It's certainly possible all three are lying, but I think its alot less likely.
-Yertle
that the quoted text is from pages 13 and 14 of the report if anyone cares.
-yertle
"It's certainly possible all three are lying, but I think its alot less likely."
Well, they're all his relatives.
Her relatives say that she said exactly the opposite on several occasions. in any case, it's all hearsay, and he has too many conflicts of interest for me to believe him or his relatives.
Mrs Schindler was the only one of her blood relatives that testified to such a conversation. She testified that when Terri was "17 to 20", during the Karen Ann Quinlan news coverage, they discussed the matter and Terri said that she should be left alone. Michael's attorneys showed that the coverage happened when Terri was 11 or 12, not 17-20.
A girlfriend of Terri's (unnamed in court documents) said that she and Terri watch a TV movie together when they were in college where Terri again made the "leave her alone" comment. In court she had a crystal clear memory of the night, even down to the commercials that played during the movie despite the fact that it had been several years. However during the deposition 2 weeks earlier she had only a very vague memory of the entire night.
Michael and Terri and Micheal's brother and wife went on vacation together where all testified that they had a series of conversations on the matter. These conversations were more recent then the other conversations and didn't have the credibility problems as the others and were believed.
Should the judge have believed one set of conversations instead of the other? Who knows. But it's not hard to see how he arrived at his decision which was more believable.
When I entered the Peace Corps, I was required to fill out each of these documents. I'm glad I did and I hope others will do so in the near future.