Maryland Bar
Bulletin
Publications :
Bar Bulletin
Editor: W. Patrick Tandy
April, 2004
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Important Document for Health Care Decisions |
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By Edwin G.
Fee, Jr.
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The lengthy legal
battle over the fate of Terri Schiavo in Florida highlights the importance
of having documents in place concerning health care decisions. According
to doctors, Schiavo has been in a persistent vegetative state since 1990,
and she receives artificial nutrition and hydration (food and water)
through a feeding tube. Her husband has attempted on several occasions to
have the feeding tube removed, arguing that this is what his wife would
have wanted. On the other hand, Schiavo’s parents repeatedly have used the
Florida court system, the Florida legislature and even Governor Jeb Bush
to block removal of the feeding tube. The parents contend that they never
heard their daughter express a desire not to have artificial life support.
This legal dispute might have been avoided if Schiavo had executed a
living will or an appointment of health care agent.
A living will is a
document pursuant to which you may declare your wishes concerning
artificial life support measures. For example, the living will would apply
if you are suffering from a terminal condition, death is imminent and
there is no reasonable expectation of recovery. The living will also would
apply if you are in a persistent vegetative state, which means that you
are not conscious, you are not aware of your environment and cannot
interact with others, and there is no reasonable expectation of recovery.
In these circumstances, a living will allows you to provide instructions
concerning the administration or withdrawal of life-sustaining procedures
in general and nutrition, hydration and medication (including pain
medication) in particular.
The Maryland
General Assembly has enacted a sample statutory living will form, although
Maryland residents are not required to use that particular form. If Terri
Schiavo had a living will that addressed the issue of artificial nutrition
and hydration, then her family members might not be embroiled in a legal
battle over her wishes. Instead, the living will could have made her
intentions clear.
An appointment of
health care agent is a document pursuant to which you may designate
someone else to make medical decisions for you if you are unable to do so
yourself. The health care agent may be given authority to employ health
care personnel, to gain access to medical and other personal information,
to consent or refuse to consent to medical care (including artificial life
support), to provide relief from pain, to protect privacy rights and to
execute documents. The health care agent also can be given priority in
visitation.
As with the living
will, the Maryland General Assembly has enacted a sample statutory form
for an appointment of health care agent, but use of the sample form is not
mandatory. Had Terri Schiavo had an appointment of health care agent, then
her family might have avoided a protracted legal battle. The appointment
of health care agent could have designated someone to make medical
decisions, including decisions concerning artificial nutrition and
hydration.
If you wish to be
an organ donor upon your death, then another important document is an
organ donor form. The Maryland General Assembly has enacted a sample
statutory form for an anatomical gift. The form basically asks three
questions and provides multiple choice answers. The first question permits
you to select which organs you wish to donate. The second question allows
you to choose which hospital or transplant center will receive the organs.
The third question permits you to restrict what the organs are used for,
such as transplantation, research or education.
If you decide to be
an organ donor then there is some optional language that may be inserted
into the living will and the appointment of health care agent. The
optional language deals with the possible conflict between the desire to
be an organ donor and the desire not to have artificial life support if
there is no hope of recovery. After a patient has been declared
brain-dead, some organs can break down so quickly that organ donation
might not be possible unless temporary artificial life support is allowed.
In these circumstances, the optional language permits the temporary
administration of artificial life support simply to facilitate organ
donation.
Because a living
will and an appointment of health care agent are so simple and inexpensive
to prepare, everyone should have these documents. In addition, anyone who
wishes to be an organ donor should have an organ donor form. Although it
is possible to fill out your own version of the statutory forms, it is
advisable to consult an attorney concerning these important health care
documents. An attorney can answer questions concerning the meaning of
terms in the documents and can assure the proper execution of the
documents.
Edwin G. Fee, Jr. is a partner in the law firm of Whiteford, Taylor &
Preston L.L.P. and a member of the MSBA Estate & Trust Law Section
Council.
