The one estate planning document that everyone 18 and older should have is an Advance Health-Care Directive. It is not the sexiest tool in the estate planning toolbox, but can head off family strife, heartache, and needless attorney’s fees in ways that no other document can.
The names Karen Ann Quinlan, Nancy Cruzan, and Terri Schiavo may ring a bell for you. They were three beautiful young women whose legacies are protracted legal battles over how they would be cared for after they lost the ability to speak for themselves.
In Karen’s case, the issue was whether “medical treatment” includes life-sustaining measures (such as use of a ventilator to keep a person breathing), and whether those measures can be declined by a patient or someone acting on the patient’s behalf. As the law evolved in this area, we learned that the answer is “yes,” under the theory that medical treatment must be consented to before it can lawfully be rendered, and a person has a right to consent—or withhold consent—to receiving life-sustaining medical treatment. The ventilator was removed, but Karen lived another 10 years. Although her parents did not believe the ventilator should be continued, neither did they believe that food and water should be withheld.
Nancy’s case took the analysis a step further when her family had to wrestle with the question of whether the array of medical treatment that can be refused includes the administration of food and water by way of a tube. In that case, the battle was between Nancy’s family, who believed that Nancy would not want to be sustained on a tube, and the State of Missouri, who asserted that only the patient can make that decision. Unfortunately, Nancy had never given written instructions about her wishes. Ultimately, Nancy’s family presented sufficient evidence to convince the court that Nancy did not want to be kept alive on a tube, and food and water were withdrawn. She died 13 days later, but eight years had passed since the car accident that had rendered her incapacitated and the legal battle over her care had begun.
Terri’s case involved the question of who has the authority to make end of life decisions on behalf of an incapacitated person. The law of Florida, where Terri lived, automatically conferred that authority on her spouse. When the dust cleared following the legal battle between Terri’s husband and her parents over whether her feeding tube should be removed, Florida law was upheld, and Terri’s husband gave the order that led to Terri’s death 13 days later.
What these cases teach us is that we have a right to say “enough is enough” when it comes to our medical care, including administration of food and water by way of a tube. We also have the right to name who will speak for us when we cannot speak for ourselves. The only way to be sure that your wishes will be known and carried out is by having a clear and comprehensive advance health-care directive.
Written by Scott A. Makuakane, Esq., CFP of the Law Firm of Est8Planning Counsel LLLC in Honolulu, Hawaii. Attorney Makuakane and his firm are Featured on ElderCare Matters – America’s National Directory of Elder Care / Senior Care Resources to help families plan for and deal with the issues of Aging.