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San Francisco Chronicle
THE TERRI SCHIAVO CASE
ADVANCE DIRECTIVE: Florida case called 'wake-up call' to put wishes in writing
Bob Egelko, Chronicle Staff Writer
Tuesday, March 22, 2005
Medical and legal experts say the case of Terri Schiavo underscores the importance of putting instructions about end-of-life care in writing to avoid costly and acrimonious battles among family members, health care professionals and politicians.
In California, an Advance Health Care Directive, designed to be completed without the need for a lawyer, allows an adult to designate a person to determine health care choices if the person who signed the document is no longer able to make decisions. The same document allows the signer to specify when life-sustaining care should not be used.
The furor over Schiavo, who left no written instructions before suffering a chemical imbalance that sent her into a persistent vegetative state 15 years ago, "should be a wake-up call for everybody to get an advance directive,'' said Jack Lewin, a Sacramento physician and chief executive of the California Medical Association.
An advance written directive is not only an effective means of communicating one's wishes to medical personnel, but is also "a kindness to the family,'' said attorney Ted Hellman, director of estate planning at the San Francisco law firm Hanson Bridgett. "It avoids the uncertainty, saves the cost and relieves the family of the awful responsibility of making these end- of-life decisions.''
Hellman said most estate-planning lawyers raise the subject with their clients. Lewin said many hospitals offer advance directives to patients before surgery.
The directives were authorized by state law in 2000 as replacements for both the Natural Death Act Declaration, or "living will,'' created in 1976, and the durable power of attorney for health care, established in 1984. Living wills and durable powers of attorney are still valid, but a durable-power document signed before 1992 has expired and needs to be replaced with one of the new directives, according to the California Medical Association, which has a Web site on the subject at www.cmanet.org/publicdoc.cfm/7.
The directive can be signed by any mentally competent adult or emancipated minor and is valid until it is revoked by the signer. It must be signed in the presence of a notary or two witnesses.
One section of the document allows appointment of an "agent'' to make health care decisions if the signer becomes incapacitated. The agent can be any adult except the person's physician or the owner or any employee of a care facility where the person is being treated.
Once the signer can no longer make health care decisions, the agent decides whether to permit or refuse treatment on his or her behalf. The agent must follow the patient's previous instructions, either those that are specified in the document or statements the patient made to family members or others; if a situation arises that the patient has not addressed, the agent must make the decision in light of the patient's values.
The agent also has access to the patient's medical records and, after death, decides such matters as organ donations and whether to authorize an autopsy.
The directive also allows the signer to spell out which types of treatment should be withheld. Unlike a living will, which could be enforced only after the signer was terminally ill or in a coma, the directive can be implemented whenever the person is no longer able to make health care decisions.
Directives are binding on health care professionals and shield them, as well as agents, from liability for following the person's instructions. But a study published in July suggests the medical community does not consider them ironclad.
According to the report published by the Archives of Internal Medicine, 65 percent of doctors who were presented with complex situations, involving conflicts between family members or questions about the patient's recovery, said they would not necessarily be bound by a written directive.
The CMA's Lewin said it would be "unprofessional and unethical'' for doctors to put their personal beliefs ahead of a patient's wishes for end-of- life care. But he said emergency-room physicians normally look first to save a | ||