Maryland Bar Bulletin
Publications : Bar Bulletin

Editor: W. Patrick Tandy

April, 2004

 

Important Document for Health Care Decisions

By Edwin G. Fee, Jr.


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.

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Publications : Bar Bulletin: April, 2004

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