Are Living Wills Really Revocable?
Beware Of The Wishes Set Down In A Will Today. You Could Be Deciding When To End Your Life Long Before Your Time Has Come.
By Pamela F. Hennessy Filed 3/23/06 GCN
Since the court-ordered dehydration death of Terri Schiavo in March of 2005, many people -- both known and strangers -- have contacted me to get my take on the topic of living wills. Since I’m not a lawyer, I’ve thought it best to encourage people to do a little research on their own before consulting an attorney.
However, it seems that the subject of living wills is one that creates startling confusion among the most intelligent of folks and now I know why.
While engaged in research at the highly visited FindLaw website, I came across an unsigned article titled Living Wills: 10 Things to Think About.
According to their own profile, FindLaw is “the highest-trafficked legal Web site, providing the most comprehensive set of legal resources on the Internet for legal professionals, businesses, students and individuals.”
It comes as an unpleasant shock and a complete disappointment to me that their Living Wills article contained not only out-dated information, but patently false information as well.
In their list of 10 things to know about living wills, FindLaw’s article states:
“A living will cannot be revoked by anybody but you, and you may change it whenever you want to ensure that it reflects your current wishes.”
That’s simply not true.
Marjorie Nighbert was a Florida woman who, in the early 1990s, created a durable power of attorney (DPA), in which she gave her brother control over medical decisions in case she could not make them for herself. And according to the family lawyer, Nighbert said she did not want a feeding tube if she became terminally ill.
Some years later, Nighbert suffered a stroke that would leave her severely disabled, unable to effectively communicate and dependent on a feeding tube to ensure she received sufficient quantities of nourishment and hydration. She was not, however, terminally ill.
After her brother petitioned the probate court, Marjorie’s feeding tube was removed. But her story doesn’t end there.
According to witnesses and a Guardian ad Litem, Marjorie begged for food. She begged for her life. The matter was brought back to the court and, though Marjorie Nighbert clearly retracted her previous directive and beseeched her caregivers for nourishment and hydration, the court ruled that she was not competent to revoke her previous living will she was dehydrated to death -- much against her desire.
Because of this particular case, how could one believe that a living will is something you can revoke at any time?
FindLaw’s article goes on to cite another morsel of advice on living wills:
“A Health Care Power of Attorney trumps a living will. A living will addresses some of the issues covered by a Health Care Power of Attorney, but does not allow for things like the withholding of food and hydration. In addition, a living will does not appoint anyone to make medical decisions in your place. A living will is only a partial safety net in the event there is nobody to assume the duties of making medical decisions on your behalf under your Health Care Power of Attorney.”
Again, this particular passage has little, if any, basis in reality. Though the language sounds correct, it overlooks what has actually happened in our courts.
In 2004, another Florida resident, Hanford Pinette fell victim to congestive heart failure and was hospitalized at Orlando’s Regional Healthcare System. He was placed on life support and recovery was determined by doctors to be “unlikely.”
Pinette also had a living will which declined life-prolonging medical treatment in the event his death was imminent. Like Marjorie Nighbert, Pinette also had named a surrogate or Healthcare Power of Attorney -- his wife, Alice.
When Orlando Regional told Alice Pinette that they intended to honor her husband’s living will and remove medical treatment from him (to allow his death), she protested and demanded that they continue to treat. Citing the fact that Hanford was alert, oriented and interactive and that no terminal prognosis had yet been tendered, Alice -- acting in accordance with her husband’s signed power of attorney directive, ordered the hospital continue his care.
They didn’t like that.
The Director of Risk Management for Orlando Regional Healthcare Systems, Inc. brought forward a petition, asking the court for authority to comply with the living will of Hanford Pinette. After a short period of legal wrangling, the court ordered on November 23, 2004:
“The Petitioner Carol Paris, an interested adult person, on behalf of Orlando Regional Healthcare System, Inc., shall implement and comply with the wishes of the Living Will of HANFORD L. PINETTE without legal recourse from the “surrogate” or any other party or entity.”
So, it would seem, that the notion that a surrogate trumps a living will is either severely out-moded or just plain false.
FindLaw’s article also states that a living will is not intended to deny one’s self the provisions of assisted nourishment and hydration. However, as we’ve seen in the cases of Terri Schiavo, Robert Wendland, Nancy Cruzan, Michael Martin and countless others, the unwritten, unspoken, nonexistent and even imaginery living will is sufficient to get the job done. In all of these cases, testimony of involved parties was enough to embolden the courts to strip basic provisions from non-dying persons with the sole objective of turning them into dead persons.
If you can’t trust what you read, what can you trust?
Again, the answer may obtainable only in doing some due diligence and giving long and careful thought to how you value yourself before you start signing your life away. Sadly, most people don’t trouble themselves with the exercise. Instead, many look at people in compromised health or living with neurological injuries and decide that these are just no longer people.
If you’ve ever felt that way for a moment, try not to feel overwhelmingly guilty as you’re not alone. Our courts seem to embrace that sentiment with enthusiasm.
Pamela F. Hennessy is the Founder of the Partnership for Medical Ethics Reform (www.forethics.com) and volunteered as a representative of the Terri Schindler-Schiavo Foundation from 2002 to 2006.