Health Care Advance Directives

Dean Hanewinckel

The 2005 Terri Schiavo case thrust Florida into the forefront in the national debate about health care decision making and whether a person has a right to refuse medical care and treatment.

Terri Schiavo was a young woman who had a heart attack which severely damaged her brain, including her cerebral cortex which controls her conscious thought. Many doctors concluded that Terri’s condition was a persistent vegetative state and she was institutionalized for 15 years until her death.

In 1988, her husband and court appointed guardian, Michael Schiavo, petitioned the Pinellas County Circuit Court to remove her feeding tube. He claimed that she had confided to him verbally that she would not want to be kept alive by artificial means. Terri’s parents, Robert and Mary Schindler opposed this, saying that such a statement would be completely out of character for her and that she believed in the sanctity of life.

The court battle continued for 7 years and included 14 appeals in the Florida courts and 5 actions in Federal District Court. The Florida legislature passed a law, called “Terri’s Law,” which allowed Governor Jeb Bush to order her feeding tube reinserted. The Florida Supreme Court overturned the law and the United States Supreme Court four times refused to consider the case. Congress even tried to call for hearings on the matter under which they subpoenaed Terri and Michael Schiavo to testify.

Celebrities, politicians and advocacy groups publicly argued the issues of the case. The saga was played out on television and radio talk shows across the nation and it seemed everyone had an opinion about how Terri Schiavo should be treated medically.

Finally, on March 18, 2005, Circuit Court judge ordered Terri’s feeding tube removed. After a flurry of last minute petitions and appeals, Terri Schiavo died on March 25, 2005, 15 years and one month after collapsing in her home. The debate still rages.

A sad but interesting fact is that all of this could have been avoided had Terri Schiavo made and executed a valid living will.

The two types of Advance Directives in Florida are the Designation of Health Care Surrogate and the Living Will.

Designation of Health Care Surrogate.

Simply speaking, a Designation of Health Care Surrogate is a written document designating a person or surrogate to make health care decisions on your behalf. The document must be signed by the you (or you must direct someone to sign for you) in the presence of two separate witnesses who must also sign the document. The surrogate named in the document cannot serve as a witness.

The surrogate does not have any authority to make decisions on your behalf until it has been determined by your attending physician that you are physically or mentally unable to communicate a willful and knowing health care decision. This determination must then be corroborated by a second physician. If both physicians find that you cannot make health care decisions, they record that fact in your medical record and notify the surrogate in writing that he or she has authority to make the decisions.

Once the surrogate obtains authority to act, he or she is responsible to act for you and make all health care decisions during your incapacity in accordance with your instructions. The last phrase is why it is important that you carefully consider your wishes, put them in writing and discuss them with the surrogate and with your family.

Living Will.

A Living Will in Florida is a written declaration which states your intentions if you should be in a terminal condition, have an end-stage condition or are in a persistent vegetative state with no hope of recovery. Using this document you would direct whether you wanted life-prolonging procedures provided, withheld or withdrawn.

A “terminal condition” is defined under the Florida Statutes as a condition caused by injury, disease or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death.

An “end-stage condition” means an irreversible condition that is caused by injury, disease or illness which has resulted in progressively severe and permanent deterioration, and which treatment, to a reasonable degree of medical probability, would be ineffective.

A “persistent vegetative state” is a permanent and irreversible condition of unconsciousness in which there is (a) the absence of voluntary action or cognitive behavior of any kind and (b) an inability to communicate or interact purposefully with the environment.

In determining your condition, your attending or treating physician and at least one other consulting physician must separately examine you. Both physicians must find that you suffer from one of the above conditions before life-prolonging procedures may be withheld or withdrawn.

A Living Will must be signed by you, or someone else at your direction, in the presence of two witnesses who must also sign the document. One of the witnesses has to be someone other than your spouse or blood relative. You may designate a surrogate to carry out your wishes, but the failure to do so will not make the Living Will invalid.

The law makes it your responsibility to notify your attending physician that the Living Will has been signed. For this reason, it is important that you bring the signed Living Will to your doctor as soon as possible after you have signed it. The doctor can make a copy to put into your medical records.

No one wants to be in the position Terri Schiavo and her family found themselves. Make it a point to speak to your attorney or health care provider about advanced directives and healthcare decision making.