PUT IT IN WRITING
As a probate attorney in Los Angeles, all of my California clients have me prepare a California Health Care Directive. As the Terri Schiavo case illustrated, in any given case, people may have divergent views on what measures should be taken to keep someone alive. The choice of which person speaks for you is your choice alone. My clients avoid or lessen the kind of strife that has torn the Schiavo family by identifying in advance who will speak for them.
TALK ABOUT IT
Each of us in Los Angeles County, Ventura County, Santa Barbara County and Orange County where most of my clients live chooses a person to whom we express our wishes who shouldn’t be left guessing. If anything good has come of the Schiavo tragedy, it is that families are now talking about end of life decisions, and are taking steps to make sure that their wishes are known and are carried out.
I still believe that the designation of a health care agent is far more effective than trying to provide instructions for every conceivable scenario. But your grant of authority to your agent – and your discussions with him or her – should cover a key issue raised in the Schiavo case by specifying whether or not the agent’s power extends to the withholding or withdrawal of fluids and nutrition.
YOU CAN’T COVER ALL THE BASES:
Any attempt to make medical decisions far in advance, I began to realize, will almost always be futile. As one widely-read booklet on advance health care directive (Shape Your Health Care Future with Health Care Advance Directives, co-produced by the American Association of Retired Persons, the American Bar Association Commission on Legal Problems of the Elderly, and the American Medical Association, 1995) states:
“[y]ou cannot cover all the bases. It is impossible to predict all the circumstances you may face. Simple statements like ‘I never want to be placed on a ventilator’ may not reflect your true wishes.”
Such a blanket statement may hold dangers. If the directive is specific, and prohibits (or requires) particular types of treatments, it may result in a bad decision, or make a good decision more difficult for the family. If, on the other hand the advance directive is general in its terms, simply abjuring “heroic measures”, for example, have you really accomplished anything?
WHAT A HEALTH CARE POWER OF ATTORNEY (PROXY) CAN – AND SHOULD – DO:
While it may not be possible to dictate medical decisions in advance, a California advance health care directive can play a crucial role in facilitating the decision making process. The California directive can be used to designate a person or persons to make decisions regarding health care, including choices concerning life-sustaining treatment. Such a document empowers the person holding it, giving that person a source of authority in the event of a disagreement between the family and health care professionals.
The health care proxy can also inform and guide the decision making process. It can specify factors to be considered. It can require that specified procedures be followed — for example, consulting with particular family members or a certain physician. The document can place limitations on the authority of the health care representative. It can, and probably should, specifically authorize the withholding or withdrawal of particular types of treatment.
I am not suggesting that a health care directive should not be specific or detailed. Rather, specificity and detail should for most clients take the form of a grant of authority to a decision maker (and, perhaps, in limitations on that authority), rather than an attempt to “make” decisions in advance.
I suppose there are some situations in which a person can truly make meaningful, specific advance decisions regarding life-sustaining treatment. A person suffering from ALS, a degenerative disease that attacks the nerves and muscles while leaving the mind able to reason, might map out a detailed plan for the provision and withdrawal of care in the final days.
The same might be true of a patient with another terminal disease such as cancer. But cases like these represent the exception rather than the rule. Most of my clients make advance directives while they are in relative good health, long before the onset of the medical crisis that triggers the use of the document.
The California Attorney General has a free form available although I have not read it and do not use it. Find it at: Office of the Attorney General.