END OF LIFE DECISIONS

In previous articles I have discussed the need for a well drafted health care power of attorney.  Several recent cases involving the withdrawal of life-sustaining medical treatment provide valuable lesson about the importance of advance health care directives.

The first, Guardianship of Schiavo, involved three related cases and an amazingly tortured procedural history.  The trial court authorized the husband/guardian of the person to withdraw tube feedings and fluids.  The parents appealed unsuccessfully, sought further review in the trial court, and also filed a separate civil action seeking temporary injunctive relief, which was granted.  In what has to be a first, the injunction ordered that the tube feeding be reinstated it had been halted about 60 hour earlier pursuant to the guardianship court’’s order.

The parents continued to file motions, including a motion of recusal, a motion to remove the husband as guardian, and a motion to prevent the removal of the feeding tube on the grounds of witness tampering.  The parents’ theory, as reported in the local press, was that the husband had perjured himself regarding conversations with his wife/ward about her wishes on life-sustaining treatment, and the wife/ward, who could be improved with new medical treatment, would be able to testify as a material (and only other) witness to this claim of perjury.  The parents have also filed motions regarding medical testimony.  Mindful of the appellate court’s admonition on timeliness, the guardianship court set another date for removal of the feeding tube, which has since been extended pending a third decision by the appellate court.  As reported by the press on several occasions, the parents have vowed to keep on fighting until they prevail, claiming that their daughter is responsive and not in the condition portrayed by the medical experts hired by the guardian/husband.

In a related case, the Conservator/wife of the protected person sought court authority to remove feeding tube who was neither comatose nor in a persistent vegetative state.  The protected person (Mr. Wendland) could follow simple commands and answer yes or no questions with the aid of an assistive device.  Sometimes prompting was involved in attaining his answers.  The opinion reported a number of questions he was asked and his answers.  He was asked whether he wanted to die––he did not answer that question.  Similar to Schiavo, Mr. Wendland’s mother and sister were opposing the wife/conservator’s efforts to stop the tube feeding.  At trial, the court found that conservator had to show clear and convincing evidence that either (1) the ward would want treatment withdrawn, or (2) withdrawal of tube feedings would be in his best interest.  The Conservator appealed the trial court’s denial of permission to remove the feeding tube, and the Court of Appeals reversed. The ward’s mother appealed.  The California Supreme Court ruled that trial court was correct because the evidence failed to meet the "clear and convincing" standard on either factual question. In this case, Mr. Wendland died shortly before the California Supreme Court decided the case.

Drafting a document alone is still no guarantee that a person’s wishes will be honored, as illustrated in the case of Knight v. Beverly Health Care Bay Manor.  Mrs. Cameron had made an advance directive in 1995, specifying that she did not want to be maintained with life-sustaining procedures when she was in a persistent vegetative state.  Her sons opposed her husband’s efforts to honor her wishes and sought an order enjoining the nursing home from removing the feeding tube.  The sons disputed the diagnosis of Mrs. Cameron’s condition.  Her attending physician and a neurologist both testified that she was in a persistent vegetative state, while the expert for the sons testified that although she was seriously impaired, she was not in a persistent vegetative state.  In addition to disputing her condition, the sons also argued that she did not understand that her living will would apply to her current condition.  The Alabama Supreme Court affirmed the trial court’s determination that her living will was valid, but remanded the case back to the trial court for an order, within 14 days, determining whether its finding regarding her condition was supported by clear and convincing evidence.

There are two lessons to be learned from these cases.  First, you must have a well drafted health care power of attorney.  Second, you must have a conversation with your family regarding your wishes, and her reasons for her wishes and your conversation needs to be put in writing.  Although this family discussion may be difficult, it will avoid the protracted legal proceedings between family members.  You should ask your attorney to provide you with a “tool kit” to help facilitate your conversations with your family about the end of life issues.

Had Mr. Wendland, Ms. Schiavo or Mrs. Cameron had those conversations with their parents, spouses, or children, it is highly unlikely that they would be fighting with each other in court.