Why A Living Will Isn't Enough

NEW Updates - 1830

The press has harped on Terri's "misfortune" as if it were a simple matter of a missing legal document:

More people writing living wills [link to CNN]

That kind of assessment is fast becoming the new conventional wisdom, leading to a lot of muddled thinking and panicked lawyer-seeking. But here are some simple questions I have:

1. Why should someone be obligated to spell out their wish not to be "refused life" in a legal document?

2. As BlogsForTerri points out, a living will is probably the wrong document to start with. A document containing any language "refusing life" or "life-saving measures" under any circumstances (especially those with established legal precedents like living wills) can - and probably will - be interpreted with extreme prejudice by those you least expect. (The links included in some of these posts are excellent IMHO.)

3. A document does not indemnify the victim from intentionally malicious or fraudulent acts by the spouse.

The other sites are doing a tremendous job covering the other points; I want to dwell on the third for a moment.

The problem for Terri Schiavo was never the fact that her wishes were not known. Her family members have a solid sense of what her wishes were. OTOH, according to those who knew the husband, in the early days of her convalescence he prattled on endlessly about how he didn't know his wife's wishes.

But that didn't stop him from changing his tune later on to say that he did, nor his lawyer from promulgating it as if it were fact, nor the judge from accepting it as fact. That ought to hold a powerful lesson about conspiracy. A concerted effort can thwart any reasonable attempt by a victim to stave off their own death. Especially one greased by the force of law.

"But wait a minute. Her problem was, her wishes weren't known - at least not officially. If she'd only written them down, then she'd be protected."

Not exactly. First: her wishes were known. Both she and her family had made it abundantly clear where Terri stood. That they were not written down does not mean in the slightest that they were not available to a curious court.

Next: any language in a legal document other than an unambiguous "keep me alive at all costs" gives the spouse the means to engineer (through subterfuge) precisely whatever precondition she establishes for her death - then gives him the right to argue for "her" right to die on that basis. Need a coma? Administer insulin. Need life support? Induce irreversible organ damage. Not really that sick? Pretend she is, and coerce the establishment into not revealing the truth.

There's evidence to indicate her husband may have tried all three. And a living will makes any follow-up discussion irrelevant; the courts can skip that step and proceed directly to her termination. (The various links make that abundantly clear.)

I'll concede that the more restrictive the language, the harder it is for a malevolent spouse to create the right "precondition". But how can you be sure it won't happen? (More importantly, how can you be certain the spouse won't still try, and kill you trying? Or succeed at passing you off as much worse than you really are?) If you try to prevent all such contingencies through a written document, you're liable to create a covenant so restrictive that nothing can be done to hasten your death even when you might really want it, your spouse really is on the up-and-up, the prognosis really is bleak and nothing can be done (except prolong your demise through heroic measures that bring only more agony and misery upon you).

Though that may not have been your intent when you created the document, what choice do you have if you want to guard against the outside possibility of an evil spouse (or other guardian) causing trouble in a strategic attempt to end your life? A document isn't what's really needed: what's needed is a new sensitivity in the law for the very real possibility of a fraudulent guardian. Such a person must be denied unrestricted access to your bedside (where they can do all kinds of things to "hasten your death") and be prevented from asserting "your" wish to die.

No solution is perfect; there's no easy way to act pre-emptively without penalizing innocent guardians. But at the very least room must be made in the law for reporting obvious warning signs and requiring their follow-up. In the end the only way to bring this threat under control is to find a way to protect incapacitated victims from malicious or fraudulent acts by the spouse or guardian that may occur regardless of what's been written on paper.

[Ed: Sorry - Blogger has been impossible to post to lately - just me or is everyone having the same problem?]