The Terri Schiavo case focused the nation on the importance of not only
discussing end of life wishes with family members, but also the importance of
having such wishes in writing, in proper legal form, in order that the "Living Will"
will stand up in court if challenged. Adults of all ages will be wise to address end
of life issues since no one knows their future.
The important decision you have to make is whether or not you want to be
kept alive artificially if you have a terminal and irreversible condition. This is a
very personal decision, which only you can make for yourself. Most of my clients
want living wills, but some do not. It's their choice.
The law creating the Louisiana Living Will was passed in 1984 under the
title of "the Natural Death Act." This law was passed to give competent adults the
right to make decisions concerning the withholding or withdrawal of life sustaining
procedures in the event they have a terminal and irreversible condition and are
unable to make the decision for themselves. This act provides a procedure whereby
an individual can make known his desire that the dying process not be artificially
prolonged under certain circumstances. The procedure is specific and must be
strictly followed.
In order to sign a "Living Declaration" (as it is called in Louisiana), you
must be at least 18 years old and capable of making end of life decisions. The
declaration must be in writing, must be signed by yourself in front of two (2)
witnesses who must also be at least 18 years old. The declaration should be read
and discussed prior to you and the witnesses signing it. The witnesses should
understand what you are signing and should be paying attention to the process. The
witnesses cannot be related to you by blood, marriage or be your heir or legatee
(someone who has a right to a portion of your estate). A Living Declaration does
not have to be notarized.
The law provides that if an individual is diagnosed as having an incurable
injury, disease, or illness, and if this is certified by two (2) physicians, one (1) of
whom is the attending physician, and if these doctors have determined that the
individual's death will occur whether or not life sustaining procedures are withheld
or withdrawn and that the procedures will only serve to prolong the dying process,
then such procedures can be withheld or withdrawn. The law further provides that the individual be allowed to die naturally with the person being given medication
and the performance of any medical procedure deemed necessary to provide the
individual with comfort care.
What has created such an interest in "Living Wills" is the Terri Schaivo
Case. Terri did not execute a living will and a contest developed between her
husband and her parents. Certainly most of us do not want our families to go
through such public torment when the signing of a relatively simple one page
document can prevent it. Anyone 18 or older should consider signing a Living
Will.
As concerns the"Living Will," the first case to reach the Louisiana Supreme
Court relative to the Living Will occurred in 2004, in Pettis v. Smith (La. App. 2
Cir. 8/13/03, 880 So. 2d 445). This case involved a contest between one daughter
on one side and another daughter and a son on the other side, concerning their
mother Mrs. Doris Smith ("Ms. Doris") who had executed a Living Will in 2001.
In March, 2004 Ms. Doris suffered a debilitating stroke and was given a gastric
feeding tube. Although she survived, she no longer had any significant brain
function. This diagnosis was confirmed by her treating physician who testified in
the case that she had suffered from global asphasia, meaning she can neither
understand nor speak; that she is in a "semi-coma" state, having reached a "flat
line" of brain function and that any further improvement in her condition would
require a "miracle."
The other physician assessed her condition as a "vegetative state" with no
chance of improvement. Both doctors testified that she could be kept alive for a
year or so by utilizing this procedure.
On May 26, 2004 after consideration of their mother's condition, her son
and one daughter indicated to the hospital by completing a form that the hospital
should stop providing Ms. Doris nutrition through the gastric feeding tube and that
the feeding tube be removed in view of the execution of the living will. The other
daughter objected to the removal of the feeding tube. The doctors signed the form
attesting to the fact that Ms. Doris would die whether or not the life sustaining
procedures were utilized and that the applicable procedure would serve only to
prolong artificially the dying process. The declaration signed by Ms. Doris was
signed in the presence of two of her children, her son-in-law and two witnesses. The other daughter was not present. The witnesses who signed the declaration
were competent adults, not related to Mrs. Doris by blood, marriage, nor were
they heirs or legatees of Mrs. Doris.
The daughter who had not been at the signing of the Living Will filed her
lawsuit in the Fourth District Court for the Parish of Ouachita to prevent her
brother and sister from removing the gastric feeding tube. The district court ruled
against her. She appealed the case to the Circuit Court of Appeals, Second Circuit,
which also ruled against her, affirming the district court's decision to remove the
gastric feeding tube. This case was appealed by her to the Louisiana Supreme
Court (2004-CC2125 8/17/04, writs denied 8/18/04) who denied writs (refused to
hear or revisit the case a third time) to have the case heard by the Supreme Court.
After this denial by the Louisiana Supreme Court, the gastric tube was removed
and Ms. Doris' death occurred shortly thereafter.
The Terri Schiavo's dispute occurred because no Living Will was executed
by Terri and a contest developed between her husband and her parents. Ms. Doris'
case involved a conflict between family members where an executed Living Willwas in place. As a result of Ms. Doris signing the living will, the courts in
Louisiana were able, rightly, to fulfill her wishes, and avoid the heartaches and
headaches of the Terri Schiavo case.
A living will can address the issue of who will make healthcare decisions for
you if you are incapable of doing so with specific instructions. However, this issue
is more effectively handled through a Special Limited Medical Power of Attorney.
There are four documents that I consider basic for everyone to protect themselves
and their family. These are a Will, Special Limited Medical Power of Attorney, a
General Procuration (General Power of Attorney), and a Living Declaration. For
additional information, visit us at www.melcherslawfirm.com
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