Treatment Decision May Not Depend On Living Will


Two recent cases demonstrate that the presence or absence of an advance directive may not always control whether a patient’s treatment is continued. In Delaware, a patient without any advance directive was permitted to die after removal of her feeding tube. Less than two months later, a Texas court refused to permit the withdrawal of feeding tubes from a woman who had executed both a living will and a health care power of attorney.

In the Delaware case, Charlotte F. Tavel, 88, was being fed by tube after a major stroke and the resulting “coma vigil.” Her daughter, Barbara Tavel-Lipnick, secured appointment as her guardian and sought to discontinue the tube feedings. Although the Court permitted her to withdraw the artificial food and fluids, the judge also authorized the State and Ms. Tavel’s appointed attorney to appeal the decision.

Delaware did appeal, alleging that the state’s living will legislation was the exclusive method for residents to exercise the right to die. In other words, no patient without a living will could ever be removed from life-sustaining treatment.

The Delaware Supreme Court ruled that a guardian could remove the feeding tubes in appropriate circumstances. Furthermore, the Court specifically ruled that the court-appointed attorney for Ms. Tavel was not required to object to the termination of treatment.

Meanwhile, in Texas, Mary Sibley was also being fed by artificial means. Ms. Sibley, however, had executed both a durable health care power of attorney (naming her daughter as agent) and a living will. When Ms. Sibley’s daughter tried to utilize the power of attorney to authorize discontinuance of treatment, a local judge ruled that she could not.

The problem in Ms. Sibley’s case was that her living will was too specific. In an effort to prevent the removal of life support too early, she had provided that her living will would not be effective until she had been “comatose” for at least 15 days.

Although Ms. Sibley’s living will did not provide the basis for removal of her feeding tube (since she was not in a coma at all, but “only” in a persistent vegetative state), her daughter argued that her power of attorney permitted her to make the decision for her mother. The court disagreed; Ms. Sibley died while being fully treated, before the local judge’s order could be appealed.

What do these two disparate cases indicate for patients at the end of life? First, Delaware’s decision permitting guardians to withdraw treatment, even without a living will or power of attorney, is consistent with the Arizona rule announced in Rasmussen v. Fleming a decade ago.

The Texas case was not an appellate court decision. Still, while most attorneys recommend that patients should be as specific as possible in a living will, Ms. Sibley’s story suggests that it is possible to be too specific. In Arizona the health-care agent is likely to be permitted to make decisions to discontinue treatment, so long as they are not in direct conflict with the patient’s living will.

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