Schiavo case creates interest in living wills

Thursday, March 31, 2005 | 12:00 a.m. CST; updated 2:15 p.m. CDT, Thursday, July 3, 2008

Wendy Lochrie has no plans to leave her death in the hands of someone else.

After working as a nurse’s aide in Illinois hospitals for more than two years and seeing the helplessness some terminally ill patients and their families feel as a result of failing to outline their life-ending decisions in living wills or health care directives, she knows better.

“We do a lot of floor work. We see a lot of injury,” said Lochrie, 40, who now lives in Columbia and works at University Hospital. “Right away it was important for me to have these documents because if the quality of life would be so poor that I would be in a vegetative state, I would want my family to move on. I would want them to have closure.”

The ongoing legal battle over Terri Schiavo in Florida has only cemented Lochrie’s views. And the international media blitz surrounding Schiavo and her relatives’ court fights is prompting others to pay closer attention to the importance of legal documents that cover end-of-life decisions.

Growing concerns about wills

Several Columbia lawyers are noticing greater public interest in creating living wills, advance health care directives and durable power of attorneys — the basic legal tools people need to make their wishes known should they be unable to do so on their own.

A living will applies to near-death situations and can prevent life-sustaining treatment only when death is imminent. But state law prohibits a living will from withholding or withdrawing artificially supplied nutrition and hydration, according to the Missouri Bar Association.

For situations in which people need artificial sustenance, such as a feeding tube, advance directives or durable power of attorney are alternatives to the living will.

Betty Wilson, a Columbia attorney who specializes in estate planning and domestic relations, said the Schiavo case has definitely raised awareness in the local population — but not nearly enough. Wilson said in a typical week, she sees about five people wanting to create one or all of these documents related to end-of-life decisions. Recently, though, the number of weekly inquiries has nearly doubled.

“It is an important decision, and important decisions are best made when you can think clearly — when there is not pressure and no crisis facing you, and you can reflect on what your wishes are over time,” she said.

Lochrie pointed out that sometimes patients don’t have families, and without directives their health care continues not only burdening the patient but also the system. When she began working at the hospital, Lochrie created an advance directive indicating her wishes for medical care and designated her husband with her power of attorney. She also made her wishes known to her parents.

“I feel like it’s a moral thing,” she said. “We should be able to help as much as possible.”

Legal distinctions numerous

Darlene Jones of Williamsburg, a patient at University Hospital, has been discussing the Schiavo case with her husband, John, during the past few weeks. Now, the couple is leaning toward going to an attorney to create a living will or advance directive.

“We don’t want to end up like a lot of people do,” Darlene Jones said. “If it was no hope or my brain was dead I would want to be let to die. I wouldn’t want to be put on a feeding tube or a ventilator for years.”

Artificial sustenance is not a provision of living wills in Missouri, but it is included in the Florida statute, which is one of the ways the two states differ.

An advance directive can outline specifics as to what medical treatment a person would like in certain situations, such as surgery, dialysis, ventilators and artificially supplied nutrition. If a person is unable to speak, these medical procedures are enumerated in advance under the directive, said Jim Gardner, a spokesman for the state Attorney General’s Office.

“An advance directive is a more comprehensive version of the living will, and the living will only pertains to extraordinary measures that are necessary for immediate sustaining of life,” he said. “That would apply in the event of an accident where someone sustained severe bodily injury and extra measure might be needed to sustain life.”

A durable power of attorney is a document requiring notarization in which another person or people are designated to make decisions for an individual if he or she is unable to make competent decisions.

Pamela Lambert, a Columbia attorney specializing in wills and trusts, said she has never created a living will for clients because they always opt for the advance directive or durable power of attorney. Still, she has noticed an increase in interest among her clients in creating such documents and is planning to send out a letter to all of her clients about the importance of making end-of-life decisions before crisis situations.

In light of the Schiavo case, Lambert is rethinking both her personal and professional approach to these decisions.

“I am a Christian. I observed the matter of nutrition and hydration in a personal situation where a family member had to have the feeding tube removed,” she said. “The decision involved a person who didn’t have a directive but was brain-dead and was kept on life support for a while.

“I am rethinking all of this because I am not sure I would want the specifications for myself — withholding nutrition and hydration sounds like a horrible way to die.”

Professionally, Lambert is considering adding a cautionary clause to legal documents related to situations such as Schiavo’s in the event that the person designated to make life-ending decisions is no longer a significant part of the declarant’s life.

Creating a living will

Creating a living will or advance directive is fairly easy and available online through the Missouri Bar, the Missouri Attorney General’s Office and other associations. An attorney is not required, but Lambert recommends using trained professionals because the language can be confusing.

There are limitations, though. While end-of-life documents can only be revoked by the person creating them, if the specifications of the statute are not followed the documents’ legality can be challenged, said Lambert.

To create a living will or advance directive the declarant, or person creating the document, must state in writing his or her wishes and declare in the presence of two impartial and unrelated witnesses that the document is intended to be a living will or advance directive. Copies should be given to loved ones, family members, physicians and clergy, said Gardner.

Jonathan McGowan, a certified nurse at a Fayette nursing home, said he is planning to create a living will or designate durable power of attorney because the Schiavo case is a situation that could happen to anyone.

“We have people in rest homes who have been there for 12 to 15 years on artificial sustenance,” he said. “Me, myself, I would go. If I can’t feed myself, I would go. It is human nature.”

Repeating the past

Attorney George Batek, who specializes in criminal law, recalled that the Nancy Cruzan case, in which a Jasper County woman left brain damaged after a 1983 car wreck, also increased the public’s interest in creating legal documents for similar situations. After a prolonged legal battle that pitted Cruzan’s parents — who wanted to remove a feeding tube — against state hospital officials, Cruzan died in 1990 after 12 days without artificial sustenance.

“That raised exactly the same thing,” he said. “Of course everyone forgets about it, and the situation perpetuates itself — perfect procrastination.

“You don’t need much for a living will: an outline of your wishes, three or four sentences, can give a guideline,” Batek said. “My advice to everyone is get one done. The cost is virtually nothing, and it could save a lot of heartache later on.”

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