Lawmakers urge living wills after Schiavo case

[ckramer]

Spurred by the Terri Schiavo case, a bipartisan group of lawmakers on Wednesday began a drive to pass legislation to encourage more people to draw up living wills or other advanced health care directives.

Florida Democrat Bill Nelson and Indiana Republican Richard Lugar had introduced Senate legislation even before the Schiavo case drew national attention, and several House Democrats said they plan to introduce companion legislation next week.

"People are highly sensitized to this," Nelson told a news conference, predicting broad support on Capitol Hill.

The Lugar-Nelson bill would have the federal Medicare program for the elderly cover doctor advice on advanced directives. It would also make living wills recognized across state lines and create a federal clearing house and public education campaign on end-of-life care. A related bill by Nelson and New York Democrat Sen. Hillary Clinton would also have state motor vehicle offices promote advanced directives.


link

[Freedom_from_Chains]

1. Well of course lawyers want this

This could be a real boon for them for a while. Truth is though, if one has a contentious family, a living will can be challenged in court like anything else.

[ElaineinIN]

2. As an estate planning lawyer....

I do living wills all the time. The form is statutory and on my system. All I need to do is fill in the names. It take me no more than 10 minutes to create, and I often do them for free for my regular clients. The conversation about what it says is more important, and can be time consuming, although frankly I rarely charge for that and usually recommend that they ought to be talking to a doctor and clergy instead of me.

Living wills aren't a money maker, trust me. They are a service.

[HockeyMom]

3. Living Wills not enough

As an attorney wouldn't you suggest Heath Proxy/Durable Power of Attorney? My Mom had a Living Will but the hospital still wanted to challenge it. My Proxy them stopped them cold. Correct me if I am wrong, but isn't that is akin to the patient "speaking"?

[ElaineinIN]

4. Yes, actually

I do three documents in Indiana: a living will, a health care representative/proxy form, and now also a HIPAA authorization, to deal with the new federal medical privacy act. But again, all of these are pretty much statutory (not a lot of way to play with the language). I could do all three in about 10 minutes.

[ElaineinIN]

5. By the way

Do you know how to link to an archived thread? I wrote a post on this topic and the distinction between them. I have it bookmarked but I don't know how to link it.

[Freedom_from_Chains]

6. And that says something about who you are,

as I am aware many of these types of documents are forms, residing on PC's, which can be knocked out by simply asking a few questions of the client. However, I am sure that there will be more than a couple of attorneys who will be willing to prey on peoples fears arising out of the whole debacle in Florida.

My problem with the whole talk that is going on these days about living wills, which it has always been prudent to have one, is that people will perceive them as being absolute in resolving any issues concerning their demise. When we are looking at a government that is more than willing to interject themselves in private affairs of family, arguable in an unconstitutional manner, nothing is absolute.

The whole thing, to me anyway, concerning the Terri Schiavo mess that got lost in the hysteria about it was the core issue. This case arose out of the probate and guardianship court of Pinellas County. It was not about the right to life, or the right to death, but about what a husbands rights and duties are under the guardianship laws of Florida, and what the potential rights of a person’s extended family, if any, are.

The courts consistently found that Michael had standing to make the decisions concerning his wife’s medical care, and that his representations as to what her wishes were, concerning life support, was credible, and that his rights were superior to any rights the parents of Terri may or may not have had.

There has been much rhetoric by the Republicans in the last year or so concerning the sanctity of marriage, in their opposition to gay marriage. However, when it comes to furthering their political agenda they have demonstrated they have no issue with subverting the institution of marriage, and hence encroach on our personal private lives and affairs, to further their political goals.

Therefore, I have a concern that living wills are being hawked as a quick fix to the problem, as Americans in general love instant gratification, when there are much larger issues that can now be swept under the rug.

Would you not concur, this is a reasonable analysis?

[ElaineinIN]

11. I mostly agree!

1. There are lawyers out there who will use this as an opportunity to make money off people's fears. Unfortunately, they are already out their doing it--revocable trust mills come to mind. They are a discredit to the profession and give all of us a bad name and make us fodder for dead lawyer jokes, IMHO.

2. You're right on the probate law, substituted judgement/probate issue. That's the thing that always bothered me the most. The fact of the matter is that I may (or may not) have had a different view of the facts; I may (or may not) have ruled differently has a judge in the case. But we have laws, by everything I've seen the laws were followed to a T (damn activist judges)--it was a sad and difficult case all around, but laws were meant to solve sad and difficult problems. If everything were happy sunny and agreeable, I'd be out of business!

3. Here's where I disagree with you a little bit. Part of the reason why we even got into the probate/guardianship/who decides/how much evidence mess is because TS didn't leave a living will. With a living will, many of these questions would have been bypassed. TS's parents may have wanted to challenge it, but it would have been very difficult--basically, fraud, forgery or mistake. You do not even get to questions of who gets to decide, who has a conflict of interest, does it hurt, is it life support -- blah blah blah. So it is a real fix to real problems, not bullet proof obviously, but what is?

4. Do I think that the extremist Republicans are hypocritical sacks of shit who cite marital sanctity and judicial conservatism when it suits them only and we ought to be ever vigilent for them using any issue to put in place their radical agenda? You Betcha!

[AnnInLa]

8. Elaine: Do you recommend being specific about a feeding tube, or

is it enough to say something generic, such as, blah, blah,

"--- and the physicians have determined that my death will occur whether or not life-sustaining procedures are utilized and where the application of life-sustaining procedures would serve only to prolong artificially the dying process, I direct that such prodedures be withheld, or withdrawn and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care."

Am I asking for free legal advice??? You betcha!

That's the way my Living Will reads, but after reading everything about the controversy surrounding feeding tubes, am wondering if I need to go back and have it changed to directly mention feeding tubes? Or, does the above take feeding tubes into consideration?

THANKS!

[ElaineinIN]

12. I probably would

If you don't, you are relying on the law of your state to define what a life prolonging procedure is. My understanding (and I am not admitted in Florida or in your state so don't sure me) is that Florida law did include artificially provided nutrition and hydration as life support and therefore would have been covered. By any vagueness on this issue gives a dissenter a "hook" upon which to hang their litigious hat, so I would probably be clear.

By way of example, the Indiana form includes for options to cover food and water: yes, I want it; not I don't want it; I want water but not food; or I leave it up to my representitive (punt!) You initial your choice on the form.

[sonicx]

7. living wills can be challenged

Terri's parents said they would have tried to keep her alive even if she had one.

[AnnInLa]

9. They can be challenged, but

as long as you have one, and hopefully, the courts hold firm, they will be upheld. I think. I hope.

[liberalhistorian]

10. Yes, they can be challenged, but it they're

done right it's very difficult to overturn one. As someone else says above, though, it's important to also have a durable (health care) power of attorney naming a very trustworthy person, with an alternative person, to make medical decisions for you when you are unable to do so for yourself. Both of those together are pretty much legally inviable, if done right.

I previously worked for an attorney and we would do living wills. We'd usually do the whole package together, a will, living will, health care power of attorney and regular power of attorney. That way, everything is taken care of at once. And he usually only charged $100 for the whole package, even more complicated wills that took longer to draft. It's the doctors whom I really fear in these situations, not the lawyers, especially the keep-them-alive-no-matter-what-and-I-know-better-than-you-do types.

[ElaineinIN]

13. The biggest problem in my mind is a practical one.

I know my husband and I know my mother. As much as I love both of them, I know that they wouldn't abide by my wishes even if written down. So it is incredibly important to talk to your decision maker, go over the document with them, give them a copy, and make sure that they are comfortable with it. Frankly, I am considering naming my siblings--I'd want them to move me to Oregon and shoot me up with enough morphine to take down an elephant, personally. I'm a turnip at that point, what do I care?