by Beth Tanous

Created on: November 11, 2009

I DON'T WANT TO END UP LIKE TERRI SCHIAVO

"I don't want to end up like Terri Schiavo." I hear this quite often in my practice. In addition to Wills and Trusts, clients are very curious about health care powers of attorney. The interest in this type of legal document was undoubtedly heightened by the tragic case of Terri Schiavo, who was taken off life support in 2005 after a long legal battle between her husband and her parents.

The health care power of attorney (also known as a proxy or durable power of attorney for health care) is a document which allows a person to appoint an individual to make health care decisions on his or her behalf in the event of incapacity. Every state has its own statutory form but the provisions are generally the same across the board.

Who should you appoint? Well, for starters, that person does not have to be an actual attorney. (Actually, a loved one is probably more appropriate). The appointee however, should be someone who knows (and will abide by) your health care wishes and desires, has good judgment and can stand up for you what could possibly be a very emotionally-charged situation. It is somewhat helpful if the appointee is local and can be reached at a moment's notice should the need arise.

You might also consider including some specific wishes within the document. Do you want to donate your organs? Do you have any strong religious preferences that need to be considered? If you are in a terminal and irreversible state, do you wish to have a feeding tube? (Note that a "living will" or "advance directive" is often incorporated into the health care power itself and details a person's wishes with respect to life-prolonging measures, such as the insertion or withdrawal of a feeding tube).

I tend to advise clients that other than the aforementioned types of very substantive wishes, the rest of the document should be broad so as to avoid any confusion between family members and doctors. For instance, I've had clients express an interest in having certain music played or in having the lights dimmed as they pass. Instead of putting these types of things in the health care power of attorney, I implore clients to have faith and trust in the individual they've named to carry out these wishes and to make sure that they've relayed all of this information to that individual.

Clients sometimes ask about the differences between a "durable" health care power of attorney versus a "springing" power of attorney. Simply put, a durable power of attorney is in effect once it is signed. It does not require proof of incapacity and is useful in the event that you are merely "unavailable." If you wish to have a power of attorney which can only be utilized if you are indeed incapacitated, or is effective only upon a specific event, a "springing" power may be more appropriate. The primary disadvantage to the "springing" power of attorney is that the incapacity may have to be clearly established by a medical professional before it becomes effective-not always an easy task in many jurisdictions.

While it is true that families do have some say in making health care decisions for an incapacitated loved one in lieu of a health care power of attorney, the Terri Schiavo case is a perfect example of what can happen when two factions of the family disagree. You may recall that Terri's husband, Michael, wanted Terri's feeding tube removed but Terri's parents opposed this, arguing that Terri was conscious. It was left to the court to determine whether or not Terri would have wanted life-sustaining measures. Unfortunately, we'll never really know what Terri wanted because she never executed a health care power of attorney.

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