Living Wills

Living Wills

They never knew one another, but their controversial deaths would prompt important conversations and inspire groundbreaking legislation. Karen Ann Quinlan, Nancy Cruzan and Terri Schiavo were young women in their 20s when they became incapacitated and entered what doctors call a ‘persistent vegetative state.’ Their families petitioned the courts for years to have feeding tubes removed or mechanical ventilation discontinued, but the cases were difficult to resolve, because there was no way for the court to determine what the women would have wanted. “Those cases are the ones that drive people to their lawyers,” says attorney Nancy Dilley, a partner at Spencer, Fane, Britt & Browne.

Having an advanced medical directive, or living will, can spare families from court battles and agonizing decisions. “In Missouri, anyone age 18 or over can have a living will,” Dilley explains. “Not many people think of it at that age, but Nancy Cruzan was only 25 years old when she was put on life support.”

A living will describes what should or shouldn’t be done in the event of a terminal condition, Dilley explains, and can be written to an individual’s precise requests. “It’s really a philosophical statement of how the person feels about end-of-life procedures, or in cases where doctors believe there will not be recovery of brain activity,” she says. “It says Here are the things I want you to do, such as provide food and wate, and relief from pain, but I don’t want to be placed on the heart-lung machine and kept alive for years in the hope that normal brain activity will resume.”

An individual can create a living will without an attorney, notes Dilley. “The Missouri Bar Association has the form on their website. Once it’s completed, it will need to be witnessed and notarized.” But she has a word of caution. “We’re talking life and death matters and I believe that it’s best to discuss your desires with an attorney or other trusted advisor.”

The original version of the Missouri Bar Association form was created after the Cruzan case, explains attorney T. Jack Challis, chair of the wealth planning group at Polsinelli Shughart. “That case went to the U.S. Supreme Court, where it was determined that people could direct their own care in these situations. Not long afterward, the Missouri legislature passed a new statute, and the original medical directive form was based on those laws.” Like Dilley, he believes the form is acceptable for individuals who want to create the document without using an attorney.

In addition to an advanced medical directive, Challis strongly advises his clients to name a medical power of attorney. “Even with the directive, it can be tough, because very few cases are black and white. For example, some family members believed Terry Schiavo was aware and alert, but in others cases, like Cruzan, there’s not much doubt.”

Challis recommends providing a copy of the medical directive to your physician, and to carry a copy with you when traveling. “Sometimes we will create a laminated wallet card that indicates a person has a medical directive in place. People put it with their driver’s license and their donor card.”