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Around Our Town...Legally Speaking

04/01/2005 - Schiavo Case

No matter what your views and thoughts may be on the Terry Schiavo matter in Florida, it does bring to the forefront the issues of quality of life and the right to die.

The dispute between her husband, Michael Schiavo and her divorced parents, Bob Shindler and Mary Shindler, is what sort of end of life decision Terry Schiavo wanted prior to an illness which rendered her incapacitated; would she have wanted her life maintained, or would she have wanted life-sustaining treatment halted?.

A Florida State court after a hearing has ruled that she would have wanted life-sustaining treatment halted, and that decision has held fast after numerous appeals brought by the Shindlers.

The Schiavo case regrettably has made very public what ought normally to be a very private matter, and which normally could be very easily resolved with a living will.

Also called an advanced directive, or directive to physicians in many states, a living will specifically delineates what kind of care you want in the event you become seriously ill and unable make your own health care decisions.

According to a study conducted by FindLaw (www.findlaw.com), only 36 percent of Americans have a living will, which in the event of terminal illness or permanent unconsciousness permits doctors to withhold or withdraw life support systems.

In the absence of a living will, medical care decisions are generally rendered by a spouse, guardian, health care agent or a majority of parents and children. However, if family members and doctors cannot or will not decide, these matters may be more publicly decided in courts, as the Terry Schiavo case unfortunately is an extreme example.

A living will becomes effective only when a patient is permanently unconscious or terminally ill and unable to communicate and spells out whether or not you want life-support technology used to prolong your dying.

Additionally, a Durable Power of Attorney for Health Care is another recommended legal document which authorizes another person, such as a spouse or parent, to make health care decisions for you if you lose the capacity to make informed health care decisions for yourself.

The concept behind these documents comes from at least two situations. One is where families or the public through medicare or medicaid must pay what can be exorbitant medical costs for sustaining the life of someone who is incurably ill for sometimes many years. Another is a quality of life issue. Many who enter into living wills simply cannot abide being kept uselessly alive in a state for an interminable period which to them is basically meaningless.

A living will may not be valid in another state and may be invalidated or contested if there are errors or problems conforming to state law.

Although the most utilized excuse is "we're too busy", most of us do not get around to living wills and other estate matters simply because we do not wish to confront our mortality. As the Schiavo matter demonstrates, procrastination may complicate more lives than our own.

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