Friday, April 08, 2005

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?]


Blogger Maggie said...

At least you can get into your blog. I have not been able to post or make adjustments to my blog all day. I love what you have written here. I have just started to put together information regarding the evidence of Michael during the guardianship trial, and intend contrasting it to what the caregivers have stated.

5:05 AM  
Anonymous Anonymous said...

What makes you think that people are filling out living wills because they wish to express that they want to be kept alive after such an accident? I know that as for myself, and most of the people I have talked with, we are filling out living wills to make sure that we will never be in such a position that Terri was - that after a year of little to no recovery, to pull whatever plugs must be pulled.

1:26 PM  
Blogger Maggie said...

A ninny mouse: No one objects to the idea that if you want to die by starvation and dehydration then that is your wish.

How much do you know about this form of death? Are you aware as to what a person looks like after he or she is dehydrated in the manner forced upon Terri?

This situation is the exact opposite of what you are speaking about. That is why we are concerned about stopping a form of unscrupulous behaviour taking hold of your nation.

I bet you are not even aware that during a neurological examination Terri was described as "awake". She was improving and her husband prevented that improvement by refusing to allow her any form of rehabilitation or therapy against the orders of the doctors at the facility where she was living.

If you are going to have one of those wills, I think that you need to specify that no one is allowed to stop all rehabilitation and therapy.

The mere fact that Terri lasted until day 14 is a testament to her strong will to live, and not to die.

Please think very carefully about what you sign in that Living Will and make sure that it does not allow inhumane treatment.

2:24 PM  
Blogger RD said...

>>>What makes you think that people are filling out living wills because they wish to express that they want to be kept alive after such an accident? I know that as for myself, and most of the people I have talked with, we are filling out living wills to make sure that we will never be in such a position that Terri was - that after a year of little to no recovery, to pull whatever plugs must be pulled. <<<

Two points: First, the media is arguing that Terri wouldn't have been dehydrated if she had "just completed a living will stating her desire not to die" under those conditions. Whether or not your point (about "most people") is well-taken is irrelevant.

The point is: the press has ALREADY ARGUED - not just that a living will is the "right option" for those in Terri's position - but that Terri herself erred by not filling one out before her "incident". (!)

What I'm doing is arguing the exact counterpoint: that doing this wouldn't have helped her in the SLIGHTEST. If her spouse was determined to end her life, he'd have found a way. I'm also arguing that there's not enough protection in the law for people like Terri who are incapacitated and at the mercy of their [fraudulent] spouse.

The second point is one I have been making on the blog (based on the most credible information available): Terri is NOT someone who fits your profile anyhow. She's not someone showing "a year of little to no recovery" - at least not any time she was in rehabilitative therapy. It was MICHAEL who made it seem that way, through his careful stage-managing and multiple reported "accidents" in the hospital.

The point is: a malicious spouse can misrepresent your improvement as lack thereof, and yank the plug on you, even though you are actually able to improve. Your living will - or any other similar document - provides no real protection from such kinds of fraud.

Or do you disagree [as to whether my points are valid, important, or apply in Terri's case]?

4:04 PM  
Blogger RD said...

...through his careful stage-managing and multiple reported "accidents" in the hospital.

I meant to say, "in the hospital and long-term care."

4:07 PM  
Blogger RD said...

>>> The point is: a malicious spouse can misrepresent your improvement as lack thereof, and yank the plug on you...

I meant to say, "and deprive you of food & water..." instead.

...even though you are actually able to improve. Your living will - or any other similar document - provides no real protection from such kinds of fraud. <<<

9:13 AM  
Blogger Maggie said...

Just another point about the uselessness of the Living Wills. They can be used to "carry out the wishes" of the person, even when that person is begging for food and water.

Also, a Living Will can be disregarded if there is a guardian appointed by the Court. The guardian has full control over the incapacitated person. This is the difficulty that existed for Terri. In her case the guardian wanted to ensure that he killed her by whatever legal means were available to him.

Another case has been brought to my attention. The elderly woman has a living will but the grand daughter chose to ignore the contents and attempted to have her grandmother starved to death. Fortunately the outcome has turned out well, and the probate judge is pro-life and would have taken the Living Will into consideration.

Also, Living Wills can be a trap, if a probate judge takes a narrow reading of the contents. This is what Greer did in another case when he ruled against the wife, and in favour of the children, thus ending the life of another Florida resident.

What is needed is an advanced medical directive. I am still working on my own thoughts on the subject. I favour the idea of specifying that I do not want to have my life unnecessarily prolonged by being hooked up to a ventilator. I do not want to overrule the use of a pacemaker or anything like that. This is quite tricky because that kind of directive needs to be carefully worded so that it meets the criteria of the Catholic Church. I do have the right to refuse treatment for say cancer, but even to do that I would need to know all of the available options.

If anything I think that I need to get it down in writing that I do not want my organs to be harvested for others to use. I do not want to be hooked up to life support if I am declared to be brain dead (not according to the Cranford criteria).

This is a subject that needs to be aired and clarified. As I have pointed out the late Pope John Paul II has been an exemplary example on how to have a death with dignity. Anything else is a farce.

3:28 PM  
Anonymous Anonymous said...

I am a liberal, I was adamantly against the convenience killing of Terri Schiavo, and I was happy to find a link to this "Liberals For Terri" blog - but I am so disappointed - it is illegible; small coloured fonts on black backgrounds are practically illegible for older eyes. I hate this tasteless fad of having black backgrounds and illegible fonts - it is immature and keeps so many people away.

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7:22 PM  
Blogger Time Freedom Fighter said...

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