Living Will and the Durable Power of Attorney

After the Terry Schiavo saga concluded last year in south Florida our firm saw a huge increase in clients seeking living wills. Many of you may not recall the case. Terry Schiavo is the woman from St. Petersburg, Florida who at the age of 26 had a heart attack and was in a coma for ten weeks. About three years later she was diagnosed as being in a persistent vegetative state.

In 1998 Terri's husband and guardian, Michael Schiavo, petitioned the courts to remove her gastric feeding tube. This meant Terri would be deprived of the sustenance she needed to stay alive. Terri's parents opposed the removal of the feeding tube saying Terri would not have wanted the tube removed. A lengthy court fight ensued (including fourteen appeals). The courts eventually determined that Michael Schiavo had the right to have the feeding tube removed.

After seven years of court battles, Terri's feeding tube was removed for a third and final time on March 18, 2005. She died thirteen days later at a Pinellas Park hospice on March 31, 2005. She was 41. Had Terri only had a Living Will there would not have been a dispute over whether she wanted the feeding tube removed.

What Is A Living Will?
A Living Will is a document that expresses a person's wishes about medical treatment in case he or she becomes unable to communicate these instructions during terminal illness or permanent unconsciousness. Health care providers are bound by the instructions contained in the Living Will. In addition to directing nurses and other health care providers to withhold treatment, Living Wills may also direct that all available treatment options and medical techniques be used, or choose some medical options and reject others.

Living Wills do not take effect until the person is medically determined to be in a permanent vegetative state or terminally ill, and therefore unable to communicate medical preferences.

Durable Power of Attorney
A durable power of attorney can perform some of the functions of a living will. This document gives another person legal power to make health care decisions for you if you become unable to make those decisions yourself. A durable power of attorney is different from a Living Will in that it may direct the attorney-in-fact to carry out the Living Will's instructions or allow the attorney-in-fact to use his or her own judgment. A durable power of attorney is not dependent on terminal illness or permanent unconsciousness to become effective. I recommend both documents be executed to cover every situation.