Hardly a day has gone by in the last two months, when the somewhat arcane subject of healthcare advance directives has not been in the news because of the very complex and sad case of Floridian Terri Schiavo. That poor woman, in a nursing home for the last fifteen years as the result of complications from a heart attack, was the subject of legal action in state and federal courts, legislative attempts by state and national legislative bodies, and executive branch assertions by the governor of the state and President of the country.
At the core of the matter were attempts to determine what Ms. Schiavo's intent was as to healthcare actions to be taken in the event of her disability. Her husband and guardian contended that she expressed the desire never to be in the situation she endured for fifteen years. Her parents contended that she was not "brain dead" (legally and medically "in a persistent vegetative state"). The issue was whether food and hydration tubes ("artificial nutrition and hydration"), inserted as part of her care, could be removed, resulting in her death. She was not in need of other mechanical assistance to be kept alive. She died March 31.
Schiavo became disabled at age 25. She, and most people that age and many others of various ages, had never made her intentions clear by filling out and signing what are know as "healthcare advance directive documents." Had she done so, much—but not all—of the controversy involved in this case would not exist.
Most states, including New Hampshire and Massachusetts, have advance directive statutes that include forms right in the statutes. In New Hampshire, the effort to enact and recognize such advance directives was the subject of a long, arduous effort led by the late Senator Susan McLane of Concord, who during the late 1980's and early 1990's proposed legislation and headed study efforts to get various constituencies together to craft documents acceptable to those on all sides of the issue. I had the unique opportunity to serve as the scrivener for the study committee that came up with final language that passed in 1991. Then, as now, various groups think advance directives to be controversial as variously too complex and difficult to enact on the one hand, and as the first step towards "assisted suicide" on the other. Indeed, during and after the recent Schiavo situation, publications have told people to enact advance directives so they will not face her situation, on the one hand, and right-to-life groups have publicized the need to complete them with clear instructions to provide "artificial nutrition and hydration." Some quote religious leaders and their pronouncements as arguing against directives or the similar "do not resuscitate orders" (DNR) put on medical charts in hospitals and nursing homes.
Two bills in the New Hampshire House and Senate currently propose updating, simplifying and combining the advance directives in New Hampshire and making DNR orders portable from health care provider to new ones. The sensitivity and complexity of the matters have resulted in those bills being retained in the respective committees for further consideration.
What is available? Both New Hampshire and Massachusetts have advance directives naming an agent to make health care decisions for those not able to make such decisions for themselves. These are known as "proxy" or "Durable Powers of Attorney for Healthcare" documents. They typically are part of estate planning or admission to hospital or nursing home processes.
The New Hampshire form asks several questions about what kind of extraordinary medical procedures the person wants if at the end of life or in a condition of "permanent unconsciousness," which means with a crushed brain stem. It allows the signer to request all extraordinary means and mechanical efforts (heart-lung machines, respirators, etc.) or authorize the agent to allow them not be started or, if started, to be withdrawn. Further, it asks whether, although the mechanical means are rejected, "artificial nutrition or hydration"—feeding and nutrition tubes—not be provided or must be, or if started, can be withdrawn (the Schiavo case). There is also a blank to put in special care instructions for particular medical conditions (diabetes, certain allergies, organ donation, etc.)
This form appoints someone to make decisions with the doctor within good medical practice, after two doctors have certified that the person who signed the document can no longer make medical decisions. If the person can still make decisions, the agent has no power.
The statute requires that the instructions of the principal be followed by the agent. It allows for a successor agent to be named if the first agent is not available or is unwilling to serve.
Would this have solved all of the Schiavo controversy? No, but had she been a New Hampshire resident and had she signed one, a lot of the controversy would have been limited. She could have made clear whether her husband or parents were her choice to make the decisions (spouses are NOT guardians for their spouses). She could have made clear whether she did or did not want artificial nutrition and hydration—the issue in the case.
However, had someone disagreed with the decision of her agent, that person could have sought to challenge the decision or be appointed her guardian. Had that been successful, the guardian so appointed would have the power to make decisions. The New Hampshire statute provides, however, that the guidance of the Durable Power of Attorney for Healthcare should be followed by the guardian and court. In a case as prominent, contentious and political as the Schiavo matter, however, merely having signed the document would not guarantee court, legislative and executive attempts to influence the result.
In addition to the Durable Power of Attorney for Healthcare, there is also a Living Will statute and form. In New Hampshire, this was also the result of the McLane committee in 1991. The Living Will is a document which expresses intent for end-of-life care and gives the person signing it the opportunity to express the desire that no extraordinary efforts be made. It has the same question about artificial nutrition and hydration. It appoints no agent and is merely the expression of intent. While the Durable Power of Attorney for Healthcare is not only for end of life (it applies to those under anesthesia, unconscious after accidents, or otherwise temporarily unable to make decisions but not facing death), Living Wills are for end-of-life situations. If a person has both documents, the Durable Power of Attorney for Healthcare controls, on the theory that having an agent to discuss care takes precedence over a written expression.
So, apart from the emotion and controversy of the Schiavo case, and the medical challenges facing Pope John Paul II which have added further focus to these matters, what should the average, healthy, busy person do? The best advice is to examine the forms available, express your wishes, appoint someone to make decisions and respect your wishes, and then discuss those wishes with the person. Then, after signing the document, make sure the agent, your doctor and hospital have a copy, so they will not have to speculate about it.
What if you travel? Is the document valid in other states? Yes—if valid where you live, other states have to respect your document. Indeed, many people keep a copy in their glove compartments of their cars.
Any of the estate planning or health care attorneys at Sheehan Phinney Bass + Green can provide quick, easy and inexpensive help in writing and signing New Hampshire and Massachusetts advance directives. No matter what your age or intent, it would help you and your loved ones if you had them.
The forms in New Hampshire and Massachusetts follow:
This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice. Your receipt of Good Company or any of its individual articles does not create an attorney-client relationship between you and Sheehan Phinney Bass + Green or the Sheehan Phinney Capitol Group. The opinions expressed in Good Company are those of the authors of the specific articles.
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