END OF LIFE DECISIONS:

                                                       Terri's Legacy

                                                                              by

                                                               Attorney Jack Cashman

              For additional information: link to Radosevich, Mozinski, Cashman & Olson LLP

All of us remember the heart-wrenching case of Terri Schiavo.  No matter whether you believed her feeding tube should or should not have been removed, polls suggest the vast majority of Americans were disturbed by the intrusion of politicians, legislators, and the judiciary in such a highly personal and emotional arena.

End of life decision making is one of the most difficult issues individuals or families ever have to face.  The lesson from the Terri Schiavo case is that we should do something now to ensure our wishes will be followed.  As adults, all of us have the right and the opportunity to put our wishes in writing, should we someday face such a situation.

As competent adults we have the right to control decisions about our future medical care, including the right to accept or refuse treatment.  When we are no longer competent, someone else will make those decisions.  By putting our wishes in writing and sharing that information with loved ones, we  make a very difficult time more manageable, should it ever arise.

Wisconsin statutes recognize two forms of advance health care directives— the Power of Attorney for Health Care (POAHC) and the Declaration to Physicians (Living Will).  Statutes require they be in a specific form.  With the POAHC, you  appoint an agent to make your health care decisions in consultation with your doctors.  The POAHC does not go into effect as long as you are capable of making your own decisions.  The POAHC is only used if either 1) two doctors, or 2) a doctor and a psychologist, after examining you, determine that you are incapable of making your own medical decisions.  Through the use of a POAHC, if you become incapacitated, a guardianship court proceeding is usually not needed.  In those rare occasions where a legal guardianship is nonetheless necessary through the courts, your 'advance directive' and your choice of whom you wish to make your decisions if you cannot, greatly increases the likelihood that your wishes will be followed. 

The second type of advance health care directive is a Declaration to Physicians, commonly referred to as a Living Will.  This document only deals with terminal conditions or a persistent vegetative state.  This document does not authorize anyone else to make health care decisions for you, rather, it simply tells your doctor whether to withhold or withdraw life sustaining treatment or a feeding tube if you develop an illness or injury that cannot be cured and your death is imminent.

The POAHC document is generally considered the more powerful and flexible document.  It makes guardianship and protective placement court proceedings less likely.  However, if you do not have someone you trust to make health care decisions for you, the Declaration to Physicians may be your only option.  It is better than no advance directive at all.  If you have both documents, it is critical to make sure they are consistent.  If there is a conflict, the POAHC will control.

All of us should take the time to set forth in writing our wishes regarding end of life decisions.  We should choose people to make those decisions whom we trust to follow our wishes.  Although it is difficult for many to speak of these things, it is very beneficial for our family members that our wishes be known.

             For additional information: link to Radosevich, Mozinski, Cashman & Olson LLP