Living Will and Health Care Proxy: lessons learned from the Schiavo case

If any good came out of the Schiavo case, where family members were pitted against each other in a life and death struggle, it is the heightened public awareness of the importance of advance directives. The two primary advance directives are the Health Care Proxy and the Living Will. In the absence of an advance directive, family members must petition the court for the appointment of a guardian who will then be forced to make health care decisions with insufficient guidance from the individual directly affected. Guardianship proceedings are expensive and as in the Schiavo case, disputes may arise as to who should be making the decisions and how those decisions should be made.

The simple solution is for each individual to have a Health Care Proxy and possibly, a Living Will. The Health Care Proxy is a written document where you name someone you trust, such as a family member or close friend, to make health care decisions for you if you lose the ability to make decisions for yourself. You exercise your choice to name an agent who best understands you and who you trust to make decisions the way you would have made them. You may also name an alternate or several alternate agents. The Living Will (which can be a separate document or be included within your Health Care Proxy) is a declaration of your wishes with regard to the withdrawal or termination of life support. It may set forth a standard when you wish life support to be terminated and may outline the type of care you wish to receive or not receive under those circumstances. The Living Will provides guidance to your health care agent in making end of life decisions on your behalf. Under New York law, your health care agent may only make decisions about artificial nutrition and hydration (nourishment and water provided by feeding tube or intravenous line as in the Schiavo Case) if your agent knows your wishes from what you have said or what you have written. Accordingly, if you wish the feeding tube to be removed, we recommend that your Health Care Proxy specifically authorize removal of the feeding tube under the circumstances you specify.

The New York State Health Care Proxy form is readily available on line or from your doctor’s office or hospitals. Often you will receive a form Health Care Proxy in the mail when you are scheduled for surgery or are about to enter a hospital. An opportune time to make decisions as to who will be your health care agent, and how to express your wishes for health care is when you are engaged in estate planning. As part of the estate planning process we generally address issues relating to death or disability. We prepare a Last Will and Testament and Durable Power of Attorney. We review beneficiary designations, tax and other planning opportunities. You will be making decisions as to who will be your executor or trustee under your Will, as well as your Power of Attorney. This is an appropriate time also to discuss who you wish to name as your health care agent and how you feel about end of life issues.

In sum, the nightmare faced by the Schiavo family members can be substantially avoided by establishing advance directives such as a Health Care Proxy and Living Will. We recommend that this be done as a regular part of setting up your estate plan and updating your estate plan.