On March 31, 2005, Terry Schiavo passed away, after a fifteen (15) year legal battle over her fate. During this time, her case became a national lightning rod for the discussion over end-of-life issues.
In brief, Terry had collapsed in her home on February 25, 1990. When the EMT’s arrived, she was not breathing and had no pulse. Various emergency medical procedures were immediately enacted, however, her brain suffered from a lack of oxygen, and she fell into a Persistent Vegetative State (PVS).
In the months and years that followed, a protracted legal battle ensued between her husband, Michael Schiavo, and her parents, Robert and Mary Schindler, about what Terri would have wished for herself. Michael argued that Terri would have wished for treatment to have been withdrawn. The Schindlers argued that Terri was a devout Roman Catholic, and would never have wished to violate the Church’s teachings on euthanasia by refusing food and water treatment.
A Completely Unnecessary Tragedy
Beyond the personal and medical tragedy that befell Terry Schiavo, what made matters even worse is that the fifteen year legal battle which ensued was completely unnecessary.
To completely over-simplify the legal case: both sides argued that they knew best what Terry wanted for herself.
What was completely missing in this case was a clear and unambiguous declaration by Terry of her own decisions in this matter.
Because there was no living will in effect, both sides were forced to argue that they knew what she wanted. Had there been a valid living will, it would have been executed, and the entire legal drama could have been avoided.
What is a Living Will?
In the legal world, there is a legal document known as a living will, or here in California, an Advance Health Care Directive.
This document is designed to do two things: (1) Make your decisions regarding health care, and end-of-life decisions, perfectly clear and then (2) Nominate another person (an agent for health care) to carry out your wishes, on your behalf, if you are not able to do so yourself.
With a living will, the decisions remain your own. Your agent is not allowed to substitute their judgment for your own, their only role is to carry out your wishes. Without a living will, the hospitals and Courts will have to substitute someone else’s judgment for your own.
What Can You Do to Protect Yourself?
We understand that these types of decisions are difficult to think and talk about. However, they are far too important to leave to others.
]Here are a few guidelines for how you can protect yourself:
(1) Talk about these issues with your spouse, your family, your pastor, your spiritual mentor(s). Pray over these decisions, but also let others know what you would want.
(2) Execute a Valid Living Will or Advance Directive. As important as it is to discuss with your loved ones, it is equally important to put your wishes into legal effect, through a validly executed Living Will or Advance Directive.
(3) Tell your doctors and your family that you have executed such a document, and make sure it can be found quickly in an emergency. A recent study shows that as many as one-half of all living wills fail because they can not be located in an emergency, when they are needed most.
(4) Most importantly, don’t try to do this alone. We encourage everyone to work with appropriate legal counsel, who can provide guidance, answer questions, and ensure that your documents are legally valid.
These decisions are far too important, too personal, and too spiritual to leave in the hands of a Court, a hospital, or a third-party. You need to take control of your own decisions, by executing a valid living will or Advance Health Care Directive today.
(c) 2009 Ainer & Fraker, LLP.
