11 Apr 2012

Every Californian Needs An Advance Health Care Directive

You may recall the name Terri Schiavo even though it’s been more than 20 years since her name was initially featured in the national headlines. Terri’s situation sparked widespread discussion and legal debate regarding her husband’s right to terminate her life support.  The legal battle that ensued in her matter demonstrated how important it  is for every person to have a “living will” to set forth their end of life decisions, including whether or not to be kept alive through artificial medical measures, such as feeding tubes and breathing machines. In California, a living will is called an Advance Health Care Directive.

In February 1990, Terri fell in her home and went into full cardiac arrest. At the hospital, the doctors determined that she had suffered massive brain damage due to lack of oxygen, causing  her to be in a persistent vegetative state. Terri required a feeding tube to keep her alive.

Unfortunately, Terri did not have a living will, so there was no document expressing her wishes regarding life-prolonging medical procedures. Terri’s husband, Michael Schiavo, wanted to have her feeding tube removed.  He felt that she would never recover from her vegetative state. However, Terri’s parents, Robert and Mary Schindler, opposed the removal of Terri’s feeding tube. Since Terri did not have a living will, the matter had to be resolved in court. In California, this court proceeding would be known as a conservatorship matter.

In 1998, Michael petitioned the Sixth Circuit Court in Florida to have Terri’s feeding tube removed.  Robert and Mary Schindler opposed the petition. The legal battle over this issue persisted for seven years, which included 14 appeals. In March 2005, the court ruled that Terri would not have wanted to be kept alive in a vegetative state with the assistance of a feeding tube. Accordingly, 15 years after her accident, Terri’s feeding tube was removed. She passed away a week later.

Terri’s case shows how important it is that everyone in California have an Advance Health Care Directive (AHCD). If Terri had had an AHCD that expressed her wishes regarding the feeding tube, those wishes could have been carried out 15 years earlier saving her family members from the emotional toll and the financial expense of the lengthy court matter.

An AHCD allows you to do many things, including:

1.  Name persons to act as your agents to make health care decisions for you when you are not able to do so for yourself.

2.  Express your end of life decisions about whether or not you want to be kept alive through artificial medical life support measures.

3.  Give directions regarding the disposition of your bodily remains following your death (e.g., burial vs. cremation).

4.  Express your wishes regarding organ donation.

It is particularly important for same sex couples and couples of the opposite sex who are not married or registered domestic partners to designate their significant other to serve as agent under the AHCD. Without this, these couples have no authority under California law to act on behalf of their significant other when they are sick in the hospital and they have no authority to dispose of the remains of their significant other after death. Furthermore, these couples are not considered family members under the law and, without the AHCD, could be restricted from visiting their significant other in the hospital when visitations are limited to “family members.”

If you do not have an AHCD, please take the time to have one prepared for you. It’s a good idea to provide a copy of your AHCD to your doctor so that he or she is aware of your wishes. Also, bring a copy of your AHCD with you whenever you have to go to the hospital for a treatment or a procedure.


If you would like to discuss this or other trusts and estates issues, please contact the attorneys at Drucker Law Offices, 468 North Camden Drive, 2nd Floor, Beverly Hills, CA 90210, 310.285.5375 Tel, 310.444.9754 Fax, www.druckerlaw.com

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